John Heath, Adm'r, etc., et al. v. P. H. Layne et al., 62 Tex. 686

Watts, J. Com. App. This suit had for its object the vacating- and setting aside certain orders made by the county court in the-matter of the estate of Thomas Heath, deceased, and to vacate and annul a sale of land made by virtue of such orders, and to remove cloud from title. It is claimed that the order of sale, and the order confirming the sale, and the sale itself, are each and all irregular and' void. The first question for consideration arising out of the record is as-to the jurisdiction of the district court to hear and determine the-case as presented by the pleadings.

Under the constitution of 1845, and the law-s enacted in pursuance-thereof, any person interested in the estate could maintain an action in the district court to revise and vacate an order made by the county court in matters pertaining to estates of deceased persons, for errors and irregularities therein, provided the suit was instituted within the time prescribed. But there is a marked difference in this respect between the constitution of 1845 and that of 1875.

By the former it is in effect provided that the district court shall have original and appellate jurisdiction, and general control over the county court as a court of probate; while the constititution of 1875 provides that the district court shall have appellate jurisdiction, and general control in probate matters over the county court. It will be observed that the former conferred both original and appellate jurisdiction upon the district court in such matters, whereas the latter only confers an appellate jurisdiction upon the district court.

This distinction is clearly marked and defined, and its effects discussed, in a clear and exhaustive opinion by J ustice Stay ton, in the case of Frank v. Chapman, 2 Texas L. R., 53. It is there, in effect, held, that under the present constitution the district court has no original jurisdiction over the proceedings in the county court in matters pertaining to the estates of deceased persons, or over that court when sitting as a court of probate. That it has no other than an appellate jurisdiction, which, to become active, must attach in the modes prescribed by law.

It results from this that an original proceeding cannot be commenced and maintained in the district court to revise and review probate proceedings had in the county court. The law has provided the modes by which the appellate jurisdiction of the district court might be made to attach, and that these are the modes to which the party complaining must resort to enable him to invoke the jurisdiction of that court.

It would seem that a proceeding in the nature of a bill of review might be instituted in the county court to revise and correct any proceeding therein had, provided it "was done within the time prescribed for bringing suit by bill of review. And an appeal would be given to the district court from any final judgment by the county court in such proceeding rendered. The statute gives to any person interested in the estate the right to appeal to the district court from any decision, order, decree or judgment of the county court in matters of probate.

The party has the right also to institute his proceeding in the county court to revise and correct any proceeding therein had, within two years from the time the proceeding was had, and he also has the right of appeal from any judgment rendered therein. But no original proceeding can be maintained in the district court, as could be done under the constitution of 1845, to review, revise, correct, etc., the orders, judgments, decrees and other proceedings of the county court. For. the district court has no jurisdiction to hear and determine such matters when, presented as an original proceeding.

In this case it is claimed that the adjudication had in the district court was not intended to, nor did it, affect, or control the county court, but that it was intended thereby to reach and control the person. It does not require more than a cursory examination of the petition and amendments and judgment of the court to show that such is not the case.

The orders of the probate court are directly attacked for certain irregularities and supposed illegalities, and the relief sought and prayed for is that those orders be vacated and set aside, while by the decree of the court the order of sale and all the proceedings thereunder are set aside and held for naught. If, as claimed by appellants, the order of sale, sale and confirmation are absolutely void, then no right could be asserted under them. And whenever or wherever any right might be asserted under them, the court would have the power to declare them null and void.

And the next question for consideration and determination is as to whether the orders and proceedings had in the county court in reference to the sale of the land are nullities. It is now well settled in this state that the county court has general jurisdiction in matters relating to the administration of the estates of deceased persons. Guilford v. Love, 49 Tex., 715; Williams v. Ball, 52 Tex., 60S; Murchison v. White, 54 Tex., 83; McNally v. Haynie, 2 Tex. L. Rev., 66.

When an administration has been properly opened in the county court upon the estate of a deceased person, the jurisdiction then attaches for the purposes of that administration. And in respect to the proceedings thereafter had in the course of such administration, as said in McNally v.

Haynie, “ In respect to such matters, the inquiry is not one of jurisdiction as to the subject-matter, but as to whether or not the court has exceeded its legal authority in dealing with a subject-matter over which it has jurisdiction.” In reference to the effect upon a probate sale when notice is not given as provided by law, the decisions in the several states are not uniform.

In many of the states it is held that the proceeding to obtain an order for the sale of real estate is a new and independent proceeding in personam, and, if the required notice is not given that then the order and all the proceedings had by virtue thereof are nullities. In others it is held that where the court has the power to order the sale of the estate of a deceased person, the action of the court in doing so operates upon the estate and not the heirs; the purchaser claims, not their title, but one paramount. That the estate passes to the purchaser by operation of law.

And that the sale is a proceeding in rem, to which all who claim under the intestate are parties. Freeman on Void Judicial Sales, secs. 15 and 16, and note 86. At first our supreme court held that the obtaining an order to sell the lands of an estate was a proceeding in personam, and that the notice prescribed by law was essential to confer jurisdiction upon the court. Finch v. Edmondson, 9 Tex., 504.- Subsequently the court held that notice was not essential to confer jurisdiction upon the court, and that the court had jurisdiction of the estate, and upon general principles could order the sale without notice.

George v. Watson, 19 Tex., 369, 370. Since that time the doctrine has become firmly established in this state that the court has jurisdiction of the estate, and that orders of sale of real property without the notice prescribed are not void, but are irregular and voidable. And that such orders may be vacated and set aside by those interested in the estate, by direct proceeding for that purpose instituted in the tribunal and within the time prescribed by law.

If, then, it be conceded that the order by virtue of which the sale was made was made and entered without the prescribed notice, it would only be voidable, and therefore binding upon all until vacated or set aside in some of the modes prescribed by law. This being true, it is not necessary to express any opinion as to whether or not the notice given before the original order was obtained is not a compliance with the law, that order having been continued in force from time to time without other or further notice.

Appellees, however, claim that the report of sale, although returned and filed in court in due time, was not noted in the minutes, of the court, and on that account and for that reason the order confirming the sale is void. The failure to note the return of the account of sale in the minutes of the court is but an irregularity, which at most would render the proceeding voidable, but would certainly not make it void.

For neither in reference to the prescribed notice in the obtaining an order of sale, nor in noting the report of the sale upon the minutes of the court, does the law denounce any penalty for a failure to comply in either respect. That is, the statute does not declare the proceedings void where there is a failure to give the notice or to make the entry upon the minutes.

Appellees also assert that the sale, etc., is void because it appears that Lipscomb, the purchaser, did not in fact pay the money to the administrator as reported and as recited, but that he paid the administrator for the land in the individual debt of the administrator, and the conveyance to him of other lands in his individual capacity. There is no pretense that Heath did not receive a valuable consideration, but it is claimed that he was not authorized to receive anything but money in payment of the land.

It is true that he was ordered to sell for cash, and it was undoubtedly his duty to do so; but did his failure to demand and receive the money from Lipscomb make the sale void? He reported to the court that he had made the sale for cash and had received the money, and in his deed to Lipscomb acknowledged the receipt of the purchase money; while it appears that, in fact, instead of the money, he received as a consideration for the land a conveyance of other lands and a release of his individual indebtedness.

When he reported the sale for cash and that he had received the money, he then stood chargeable with that amount of money in hand for the estate. And it would seem to follow that his sureties would be liable for that amount. The statute provides that if the administrator delivers the deed, where the sale is made on a credit, without having first received the note and mortgage of the purchaser, that the sureties on his bond are liable for the full amount of the sale. Gen’l Laws 1876, p. 114, sec. 87; R. S., art. 2094.

In a case like this, where the administrator is ordered to sell for cash, and reports that he has made the sale and received the money, it is not believed that the sureties on his bond would be heard to deny the truth of the report. Such a sale, while it would not be void, could be vacated for the irregularity in a proper proceeding commenced by those interested within the time and in the tribunal provided by law. The appellees purchased the land from the heir pending the administration. As was said in Mills v.

Herndon, decided at the recent Tyler term (60 Tex., 353), that did not render their purchase void, but the rights acquired by the purchase was in every way subject to the administration. If the' land was left undisposed of by the administrator at the close of the administration, then their title to the same became perfect. They are not entitled to any equitable considerations in this case on account of having improved the land. For they made the purchase and placed the improvements upon the land at the time the same were assets of the estate, and subject to, in fact then being in the course of, administration.

Our conclusion is that as presented by the pleadings and evidence the district court had no jurisdiction of the cause, and therefore the judgment ought to be reversed; and as it might be possible for appellees to state a cause by amendment, of which the court would have jurisdiction, the case ought to be remanded. REVERSED AND REMANDED. [Opinion adopted March 14, 1884.]