author: Quinas, J.

text:
    Seth Shepard v. Samuel Hunsacker et al.
    (Case No. 4203.)
    1, Quitclaim deed.— A deed which recites that the grantor conveys “ all my right, title, claim and interest in and to the following described tract of land ” (describing it); “ and I do forever quitclaim all my claim and interest in and to the above-named tract of land,” is only a quitclaim deed, and passes no title to the land as against a prior unrecorded conveyance of the property. Rodgers v. Bur-chard, 34 Tex., 452; Harrison v. Boring, 44 Tex., 256; Taylor v. Harrison, 47 Tex., 460; 11 How., 322; Washburn on Real Property, vol. 4, 438; Wright v. Lancaster, 48 Tex., 255; Smith v. Pollard, 19 Term., 373; 14 Kan., 148.
    3. Unrecorded conveyance—Quitclaim deed — Lien of judgment creditor.— While the lien acquired by a judgment creditor by a levy of an execution upon land of the judgment debtor is superior to the title of one claiming under an unregistered deed, yet the lien only attaches to such title as may be in the debtor, and if he has only a quitclaim deed to the land he can have no title thereto as against a prior unrecorded conveyance of his vendor, and a sale by the sheriff passes no title to the property. Borden v. McBae. 46 Tex., 396; Kavanaugh v. Peterson, 47 Tex., 197; Grace u Wade, 45 Tex., 523.
    Appeal from Navarro. Tried below before the Hon. D. H. Prendergast. •
    Appellant, who was plaintiff below, filed his petition March 11,1879, in trespass to try title, to recover of appellee a tract of three hundred and twenty acres of land in Navarro comity, the headright of E. L. Folsom.
    Plaintiff claimed title as follows: 1st. A deed from E.
    L. Folsom to W. G-. Henderson, viz.:
    “The State oe Texas, County of Madison.
    “ Know all men by these presents that I, Ebenezer L. Folsom, of the county and state aforesaid, for and in consideration of the sum of $320 to me in hand paid, the receipt of which is hereby acknowledged, have this day granted, bargained, sold and conveyed unto W. G. Henderson all my right, title and interest in and to the following described tract of land as follows, to wit: Three hundred and twenty acres of land, my headright (etc., describing the same by metes and bounds), to have and to hold all and singular the same, the above described tract of land, unto him, the said W. G. Henderson, of the county of Brazos, state of Texas. And I do forever quitclaim all my claim and interest in and to the above named tract of land unto the said Henderson, his heirs and assigns, and against myself, my heirs and assigns, and all claims whatsoever against the said land or part thereof. This interlineation done before the sealing and delivery of these presents. Witness my hand and seal this the 12th of May, A. D. 1873.-
    (Signed) “ E. L. Folsom.”
    This deed was duly recorded in Navarro county on the 7th day of May, 1873.
    2d. A judgment of the district court of Washington comity, in favor of A. Testará against W. Gr. Henderson et al., for §1,000. This judgment was recorded in Navarro county on the 17th day of March, 1876.
    3d. Execution issued on said judgment July 3, 1876, and-return showing levy, advertisement and sale of said land, and that sale was made to plaintiff for §256 as assignee of the judgment, and the amount, less the costs, credited on the execution.
    ■ 4th. Sheriff’s deed to plaintiff in accord with aforesaid execution, dated August 2, 1876.
    Defendants’ claim of title is as follows:
    1st. Transfer of the certificate by E. L. Folsom to John Faith, dated September 21, 1844.
    This transfer has never been recorded nor authenticated for record.
    2d. A regular chain of title from John Faith to Neblett' and Beaton, the landlords of Huasacker, most of which was of record.
    The case was submitted to the judge upon an agreed statement .of facts, who gave judgment for the defendants.
    The conclusions of law and of fact were prepared by the judge and filed by order of court with the papers of said cause in connection with said judgment.
    He recites therein the claim of title of the parties as already stated, and finds the purchase of the judgment against Henderson and assignment thereof to plaintiff, the levy and sale of the land under it, and that Shepard’s bid was simply credited upon the execution issued upon that judgment, no money being actually paid, except some costs.
    The defendants took actual possession of the land after the purchase of the plaintiff. The judge then proceeds:
    “ There is no evidence that Shepard had- notice, actual or constructive, of the transfer of the certificate by Folsom to Faith.
    “ Looking alone to the terms of the deed from Folsom to Henderson, unaided by proofs of any fact or circumstance tending to show the intention of the parties, and there' being no evidence of the payment of the purchase money, and nothing to show whether the amount mentioned in the deed as the consideration was real or nominal, and what proportion it bore to the actual value of the land, .1 incline to the opinion'that it is a quitclaim deed. If so, I conclude that it could not take precedence of the equitable title of the defendants. „
    “ But whether this conclusion, as to the construction of the deed from Folsom to Henderson, and to the legal consequences that would follow, is correct or not, as the plaintiff was the owner of the judgment of Testard <o. Henderson, and the amount bid by him at the sale of the land was merely credited on the judgment, I conclude that he could not be considered a purchaser for value. As the proof fails to show the payment of the purchase money or the sale from Folsom to Henderson (whether the deed then made is a quitclaim or not, and as the purchase made by the plaintiff could not be considered for value, nothing being paid or parted with in consequence of the purchase), I conclude that the title of the plaintiff cannot take precedence over the prior equitable claim of the defendants, notwithstanding these purchases in other respects may have both been made in good faith and without notice of said prior claim. With this view of the law and facts in the case, I give judgment for the defendants.
    “D. M. Prendergast, Judge.”
    The statement of facts fully sustains the finding of the facts made by the judge. Ho other material facts are stated therein except it be that the land was not occupied when Shepard bought it; that it was advertised for sale for back taxes due upon it, and he paid them; that the defendants Beaton and Heblett lived in Corsicana and never rendered the land for taxation; that defendant Hunsacker (their tenant) moved on the land a few months prior to the suit.
    The assignments of error are:
    1. The court erred in deciding that the deed from Folsom to Hunsacker was a quitclaim deed.
    2. The court erred in deciding that plaintiff was not a Iona fide purchaser, etc., on the ground that he bought said land at execution sale, and the amount of his bid xvas credited on the judgment of Testard v. Henderson, owned by plaintiff.

      Shepard dé Garrett and Read de Read, for appellant.

      Hardy dé Weblett and Beaton dé Damon,9iov appellees.
   Quinas, J.

If the conclusion of the judge to which the second assignment is pointed, that Shepard, having purchased the land and merely credited his bid upon this judgment, nothing having been paid or parted with in consequence, is not therefore entitled to judgment, be correct, there would be no necessity to discuss the first assignment of error, or to determine whether the deed from Folsom to Henderson was a quitclaim or not. But we think it is quite obvious that this is not the case, and that the judge erred in his view of the law, and in the conclusions upon which he based his judgment.

Although Shepard tiiay not be strictly a purchaser in good faith, because his bid was placed as a credit upon his judgment, and nothing was paid or parted with in consequence of the purchase, still it by no means follows that he could not, by his purchase, acquire a valid title to the land superior to the defendants’, who claim under an unrecorded deed, of which Shepard had no notice, actual or constructive. The case shows that Shepard was a creditor upon a valid judgment, and, by a valid levy upon the land, acquired a lien upon it for the satisfaction of his debt superior to the right of one claiming under an unrecorded deed prior in point of time to the deed from Folsom to Henderson, of which Shepard, at the time of the levy, had no notice. Creditors are by the law protected full as much as purchasers in good faith. They stand precisely upon the same ground. They are protected by their judgment lien or levy, just as the purchaser in good faith who pays his money is protected by his deed. And though, as we have said, Shepard might not be able to defend simply as a purchaser in good faith, for the reason that he had credited his bid upon the judgment, yet he would be protected by his judgment, the levy and the sale, and the sheriff’s deed would convey to him the land. For it, indeed, would be absurd to say that, while the law as to him avoids all unrecorded prior incumbrances of which he has no actual notice, yet that he cannot proceed to avail himself of that protection by a sale under execution at which he may be the purchaser, and when, that he should purchase, may be the necessary means of preventing a sacrifice off his security and of collecting his debt. Borden v. McRae, 46 Tex., 396; Kavanaugh v. Peterson, 47 Tex., 197; Grace v. Wade, 45 Tex., 523.

The material question, then, in the case is upon the first assignment of error, whether the deed from Folsom to Henderson was a quitclaim deed or not; for if it were, whether Shepard was a purchaser of the land in good faith or not, he could acquire no greater title to the land than Folsom conveyed to Henderson, which, if Folsom had before then conveyed to Faith, was none at all.

In Rodgers v. Burchard, 34 Tex., 452, it was held that a quitclaim deed of all one’s right, title and interest purports to convey, and does convey, no more than the present inter7 est of the grantor, and that a Iona fide purchaser under it takes no greater interest than the grantor then had.

But this case is qualified in Harrison v. Boring, 44 Tex., 256, and in Taylor v. Harrison, 47 Tex., 460, where it is said that the principle in Rodgers v. Burchard “ is only applicable to quitclaim deeds in the strict sense of that species of conveyance, and where its legal import is a quitclaim or deed of release of all one’s right, title and interest, which is not intended and does not purport to convey an absolute right to land without covenants of warranty, as contra-distinguished from a conveyance of the title, or chance for title, which the grantor may be supposed to have.”

And again: where the deed contains evidence from which it may be fairly deduced that the absolute right to the land, and not the title or chance of title, is sought to be bought and sold, the purchaser may be a bona fide purchaser, though the deed may have in some respects the qualities of a quitclaim deed in form. Harrison v. Boring, 44 Tex., 262.

A deed, as other instruments, may be read and construed under the light of surrounding circumstances under which it was executed. While a deed may be so.plain in its terms as to require the court to construe it to be a quitclaim in one case, and an absolute conveyance of the land in another case, still its- wording may be such as to raise a question whether it is the one or the other, and in that event the circumstances under which it is made, and purposes for which it is made, may be considered to fix" its true character. 11 How., 322.

Assuming, then, that the deed from Folsom to Henderson may not be so plain in its terms as to require us to construe it, but that we are authorized to look outside of it for circumstances to explain its meaning, we find nothing in the statement of facts which throws any light upon it. There is no proof in relation to its execution, or the circumstances under which it was executed, and none of value of the property at the time, or whether the consideration recited in it was in fact paid, or was merely nominal, and the land was unoccupied.

We must judge of this deed by what appears upon its face, and that only.

The material parts of a deed ordinarily are the premises and the habendum.

The premises is that part which precedes the words “ to have and to hold,” and includes the description of the thing granted.

In Folsom’s deed to Henderson, the premises are, after reciting the consideration, etc., “ I have this day granted, bargained, sold and conveyed to G-. W. Henderson all my right, title and interest in and to the following described tract of land.” That these words do not convey, or purport to convey, the land, but only Folsom’s right or claim to it, is too obvious for comment.

The habetidum which follows is, “ to have and to hold all and singular the same, the above described tract of land, unto him, the said W. G. Henderson.” The office of the habendum is to limit and define the estate which the grantee is to have, or the property granted. It can be applied to use only where the granting words leave the subject of ownership open to explanation. And the rule is as stated in Washburn on Real Property, vol. 4, 438, “the habendum. may enlarge, expound, qualify or vary the estate granted in the premises, but it can never extend the subject-matter of the grant.” 4 Kent., 524. If, therefore, anything is embraced in the habendum which is not granted, it does not pass. It cannot operate as a conveyance. Sumner v. Williams, 8 Mass., 174.

So it was held that the omission of words of grant by mistake, though the instrument was otherwise perfect as a warranty deed, was not helped by the habendum so as to grant the land. Brown v. Manter, 1 Foster, 528, cited in Wright v. Lancaster, 48 Tex., 255.

And in Smith v. Pollard, where a deed was in the common form of a quitclaim deed, and the habendum in these words: “ To have and to hold the premises so that neither the said Alexis (the grantor), nor any one claiming under him, should thereafter have claim or right. to the premises aforesaid,” it was held that it should be construed to apply to such title and interest only as the grantor then had in the land. 19 Verm., 272.

In another case, where the words of the deed were, “We do bargain, sell and quitclaim all our right, title, interest, estate, claim and demand, both in law and equity, as well in possession as in expectation, with all and singular the hereditaments and appurtenances thereunto belonging; and we do also promise to defend the property against all claims, if any shall come up against said property,” it was held to be only a quitclaim deed. Young v. Clippenger, 14 Kan., 148.

Tested by these rules and decisions, it is evident, we think, that the clause in the habendum in this deed, “To have and to hold all and singular the same, the above described land,” must be held to refer only to the estate purported to be conveyed in the premises, that is, the right, title, interest and claim of Folsom in the land, and that the words cannot be extended to embrace the land itself.

[Opinion delivered October 25, 1880.]

But looking to the whole deed, and reading it altogether) without putting undue stress upon its formal divisions, we are forced to the conclusion that Folsom intended to convey, and, in fact, conveyed, simply his right or title to the land, whatever that might be. The deed is not skilfully drawn, but it bears unmistakable evidence that it was uppermost in Folsom’s mind that he was making a quitclaim merely. The sentence which follows the habendum, and which may be considered as explanatory of the instrument, by its use of the word “ quitclaim,” and the apparently studious avoidance of the word warrant where it would most naturally occur, and the quitclaiming thereon of all claims against himself, his heirs and assigns,” appears to us irreconcilable with the idea of the transfer of anything more than a mere claim to the land.

The language used does not import any larger estate than that included in the premises of the deed. It is, in effect, but a mere repetition, and seems to have been used to render more emphatic his intention to part only with his claim of title.

The judge who tried this cause had opportunities, by an inspection of the instrument and its interlineations, which might possibly afford some light, of determining its character which are denied to us. His conclusion was that the deed was merely a quitclaim deed, and in that we think he did not err.

The judgment will therefore be affirmed, and we so award.

Affirmed.


source: Caselaw Access Project

author: Quinan, J.

license: Public Domain

text:
    Sarah Carleton et al. v. Sam’l A. Roberts et al.
    (Case No. 2546.)
    1. Pleading—Perversion of trust property.— In 1854 certain citizens of the city of Bonham, and Fannin county, together with Masonic Lodge No. 18, established, by the subscription of money and property in sums from $25 to $1,000, an institution of learning, intended for the instruction of females alone, where no sectarian religious doctrines of any kind should be taught,—the lodge, by agreement of all parties, being selected as trustee,— and on January 24, 1856, Bailey Inglish donated ground on which to erect the necessary school buildings, conveying the land to the lodge . . . “ to have and to hold the said four acres of ground unto the said Constantine Lodge in trust for the stockholders of the Bonham Masonic Female Institute.” In 1868 the lodge sold and attempted to convey the land away; the purchaser took possession, opened a mixed male and female school, and undertook to make it a Campbellite institution. In a suit by a number of the subscribers to have the property restored to the use originally intended, held: (1) The petition showing the suit was to enforce a trust for charitable uses, and prevent the perversion of the trust property to improper uses, disclosed a good cause of action. (2) Evidence was admissible to show that by “ stockholders,” in the deed to the land, was meant subscribers to the institution; and (3) That an election of trustees in accordance with the act of January 30, 1845, authorizing the appointment of trustees in certain cases, was not necessary to complete the organization of the institution, or essential to its existence. Dana v. Fielder, 13 N. T., 40; 1 Greenl.. Ev., sec. 388; Wharton, 930; Thomas v. Bllmaker, Select Cases in Equity, 110; Paschal v. Acklin, 27 Tex., 200.
    0. Parties—When very numerous.— While the rule that all parties in interest ought to be made parties is well established, so also are the exceptions to it; and where parties interested in the subject-matter of a suit are very numerous, some of them may maintain a suit for themselves and others interested in like manner. Story’s Equity PL, 94, 97, 114.,
    D. Pleadings — Showing ground foe belief.—A petition alleging a sale of trust property, its diversion from its intended use, and a direct repudiation of the trust by the trustee, shows sufficient cause why relief should be granted. Story, Eq., sec. 1199; Livingston v. Lynch, 4 Johns. Ch., 594.
    4. Evidence—Notice.— Parol evidence is admissible to establish a trust. The trust being declared in the deed to the trustee, the purchaser buys with notice of it. Abbott’s Trial Evidence, 295; Reeves v. Bass, 39 Tex., 295; Greenl. Ev., 288; Wharton’s Ev., 1042, 1044.

      5. Assignment of errors.— All errors not distinctly specified in the assignment of errors will be considered by the supreme court ns waived. Clements v. Hearne, 45 Tex., 415; Elliott®. Mitchell, 28 Tex., 107; Howard v. Colqnhoun, id,, 184.
    Appeal from Fannin. Tried below before the Hon. John C; Easton.
    The case presented by the appellees here (plaintiffs below) in their petition and its many amendments may be succinctly stated as follows:
    In 1854 the Masonic Lodge Ho. 13, of Bonham, one of the defendants, and many citizens of Bonham and of Fannin county, became desirous of establishing and endowing, in •Bonham, an institution of learning where none but females should be instructed, and where no sectarian religious doctrines of any kind should be taught.
    With this object in view meetings of citizens were held, subscription lists were opened and circulated, conferences were held with the lodge, and a suitable site for the proposed school was sought.
    The result was that one Bailey Inglish donated the lots of land in controversy for a site for a school of the character of the one above mentioned; many citizens donated sums of money ranging between $1,000 and $25, to be expended in establishing such an institution on that site (and among them were the appellees), and the lodge, itself a subscriber, agreed, at the instance of all concerned, to act as trustee for this institution. It was understood that the fruits and income accruing from the institution, if any, should be appropriated to keeping up the institution forever. And that in the control.of the institution, each subscription of $50 should be counted a share and entitled to one vote.
    Accordingly, Inglish, valuing these lots at $400, on the 24th January, 1856, made a conveyance of them to the “ Constantine Lodge, Ho. 13, of Free and Accepted Masons, . . . to have and to hold the said four acres of land unto the said Constantine Lodge, in trust [for the stockholders of the 'Bonham Masonic Female Institute.”
    The subscriptions were paid in, a school-house erected and a non-sectarian female school placed in successful operation. Unfortunately the buildings were soon destroyed by fire; but new subscriptions were made to rebuild and re-establish the school upon the same principles, and it was soon rebuilt and re-established upon a firmer basis than before. The lodge continued to act as trustee of this non-sectarian female school in accordance with the trust imposed upon it by the founders of the school until about the year 1868.
    On the 18th April, 1868, the lodge attempted to convey and sold to Mrs. Carleton, one of the appellants, all their right, title and interest, power of occupation and use in these four acres of land.
    Afterwards Mrs. Carleton, joined with her husband, on the 27th December, 1870, conveyed to Frank J. Abernethy, another of the appellants, an undivided one-third part of the same lots.
    These appellants took possession of this school under the above recited conveyances, and, instead of carrying out the objects of the original trust, converted the property and its profits to their own use, opened a mixed male and female school, and, abandoning the original non-sectarian character of the school, seem to have attempted to give it a sectarian complexion, and to make it a Campbellite institution.
    On the 4th of March, 1871, the appellees, comprising a large number of the founders of this non-sectarian fetoale school, filed this suit in the district court of Fannin county, setting up the above stated facts against the appellants and the Constantine Lodge, charging the Carletons with full notice of the trust under which the lodge had hitherto held the property, and prajnng for a decree annulling and canceling the conveyances from the lodge to the appellants and for the restoration of the original trust.
    To the petition of the plaintiff, the defendants Carleton and Abernethy demurred, generally and specially. The special causes assigned are, that the petition does not show who held the public meetings referred to, or that directors were thereat appointed, or that they constituted a body politic or corporate with power to grant or receive a trust, or that ten days’ notice was given of such meeting, or who was appointed president or secretary, or that the citizens elected by a majority of votes a suitable number of trustees, pr that any certificate of the election of trustees was forwarded to the recorder of Fannin county or recorded.
    The defendants Carletons and Abernethy answered, denying all the allegations of the plaintiffs. They alleged that they were purchasers of the property in good faith for value, and pleaded the limitation of three and five years. They deny the trust as set out in the petition, or any knowledge of it, .and aver that the lodge was the legal and equitable owner of the property, who sold to them; that they have been and are conducting a school for male and female pupils of high grade, in the buildings. There is no special relief prayed for by defendants.
    The lodge answered, alleging their willingness to resume the trust.
    The case was submitted to a jury, who found a verdict for the plaintiffs, and judgment was rendered thereon for a restitution of the property to Constantine Lodge, to be held and administered by it in trust for the maintenance of a female school for the citizens of the town of Bonham and vicinity, and restraining them from diverting it to any other use; that the deeds to Carleton and wife and Abernethy bo canceled, etc.
    The defendants moved for a new trial, which being overruled, they appealed.
    It is assigned for error, in substance:
    1. That the court erred in overruling the defendants’ demurrer and special exceptions.

      2. In admitting in evidence the testimony of Fuller and others as to statements made by Inglish, previous to the execution of the deed, as to the purpose of the deed.
    3. In admitting testimony of Inglish’s declarations that he put in- the land as stock, and was a stockholder in the school enterprise.

      4. In the charge to the jury.

      5. In refusing charges asked.
    6. In refusing a new trial.

      Mcmey <& Chenoweth, for appellants.
    Hancock, West c& North, for appellees.
   Quinan, J.

The questions presented by the demurrers, it is believed, are not difficult of solution. That the petition disclosed a good cause of action is, we think, free from doubt. The objections urged by the appellants are: 1. That there was no legal association under the title of the Bonham Masonic Female Institute capable of holding property; that the word stockholders implied shareholders in an incorporated company, and no act of incorporation was averred.

The object of this suit is to enforce a trust for charitable uses and to prevent the perversion of the trust property to improper uses. The organization and maintenance of a school for females at Bonham was a public charity. A conveyance of property to that use without naming any trustee would be held good and enforced in equity, and if trustees were necessary, a court of equity would appoint them; for as the maxim is, so laudable “a charity would never be suffered to fail for want of a trustee.” But here there is a trustee, the “ Constantine Lodge,” capable of holding property for charitable uses and administering the same. In the conveyance to the lodge of the property, the trust is declared to be for the stockholders of the “ Bonham Masonic Female Institute.” If there were no such stockholders the trust would not fail. The charitable purpose is impressed on the face of the instrument. A court of equity would construe the deed so that it might stand, and would construe it liberally in favor of the charity. There being (strictly speaking) no stockholders, proof would be heard to determine who are meant by the term. Evidence is admissible always “to show the surrounding circumstances of the parties and of the subject of the contract, and the usages of language under which the instrument was written, in order to read the instrument with the same knowledge with which the party wrote it.” Dana v. Fielder, 12 N. Y., 40. And the circumstances surrounding the transaction, as detailed in the petition, show that by .stockholders was meant subscribers — not stockholders, strictly, because they wei*e not incorporated; 'not partners or stockholders in a joint-stock company, for here there was no community of profit or loss; no termination of their association by the death or withdrawal from the enterprise of. any of its members; no taking of profits in severalty, nor contemplation of profits for private use, but the future fruits and income of the institution about to be established were devoted forever to its maintenance, and to be diverted to no other purpose whatever. Thomas v. Ellmaker, Select Cases in Equity, 110; Paschal v. Acklin, 27 Tex., 200; 1 Greenl. Ev., sec. 288; Wharton, 939.

2. It is objected that the petition does not show the election of trustees and proceedings had in accordance with the act of 30th January, 1845, to authorize the appointment of trustees in certain cases. That act provides how, in certain cases, trustees may be elected at a public meeting and qualified, and so constituted a body politic and corporate, capable of holding property, of suing and being sued; but it is not contended that the subscribers to the Bonham Masonic Female Institute were, by virtue of the provisions of that act, incorporated, nor was it contemplated. The plan of their organization was that the masonic lodge should become trustee, and that only those contributing to the fund should have a voice in the direction of the administration of the institution. That statute has no relation to their association, nor does it follow, that because, by its terms, provision is made for incorporation of societies for the building of school-houses, meeting-houses, parsonages, and dedicating camp-grounds, that the same laudable undertakings can be accomplished in no other way.

3. It is also objected that the petition discloses numerous other parties having an interest, who are not made plaintiffs or defendants in this suit.

While the rule that all parties in interest ought to be made parties is well established, so also are the exceptions, to it.

One is, where (as the petition in this case discloses) the parties are very, numerous, and it would be impracticable to join them; that it would produce interminable delay and would probably obstruct the purposes of justice.

Another is, where parties form a voluntary association for public or private purposes, and those who sue or defend may fairly be presumed to represent the rights and interests of the whole. In these cases the suit may well be brought by the plaintiff, either alone or with others, in behalf of^ himself and all others interested. Story’s Eq. Pleading, 94, 97, 114a, 115.

And another exception to the general rule is in respect to public charities; that the same strictness is not required either as to parties or to pleadings as in ordinary cases. Story, Eq. PL, § 8.

4. The petition in this case sets out sufficient cause why relief should be granted. The sale of the trust property to Oarleton, and by Carleton to Abernethy, the diversion of it from the maintenance of a school solely for females, to a mixed school for males and females, and from one not to be conducted on sectarian grounds, to one under the control of a particular religious denomination, were acts directly opposed to the scheme of the founders of the institution. There was moreover alleged a direct repudiation of the trust. It is held adversely to them. This was just such a case as entitled the subscribers to the charity to the aid of a court of equity to prevent the perversion of the fund to which they have contributed to other uses. “ Eegarding this association,” says Chancellor Kent in a similar case, “ in the aspect of a charity, nothing can be clearer than that a court of equity will not suffer its funds to be diverted to other uses than the donors intended.” Livingston v. Lynch, 4 Johns. Ch., 594. And Judge Story says, “in such cases, if there be any abuse or misuse of the funds by the trustees, the court of chancery will interpose, at the instance of the attorney-general or the parties in interest, to correct such abuse or misuse of the funds. ... If the trustees of the charity should grossly abuse their trust, a court of equity, may go to the length of taking it away from them, and commit the administration of the charity to other hands.” Story’s Eq., § 1199.

5. The other errors assigned in the case will require but a very brief notice. They are directed to the charge of the judge, his refusal to give charges asked, the improper admission of testimony, and his refusal to grant a new trial on these grounds, and that the verdict was against the law and evidence.

Objections were made to the admission of the testimony of the witnesses Fuller, Bean and others, to prove the declarations of the grantor, Bailey Inglish, that he put the land in as stock in .the school enterprise, as he had no money to give, on the ground that it does not appear in writing so as to bind him, and that it tends to vary the deed, was made prior to it, and was not made in presence of the lodge. It is-not easy to perceive the force of these objections. Parol evidence is admissible to establish a trust.

This is especially so where the trust is to charitable uses; “for charities are also so highly favored in law that they have always received a more liberal construction than -the law will allow in gifts to individuals.” Story’s Eq., 1165. So parol evidence is admissible to show the consideration of a deed, as in this case that Hr. Inglish’s recital of the consideration- of $400 received for the land was in fact but intended to express the value of the stock he was taking, or the donation he was making in the grant of this land to the charity. Again, the objection to this testimony could only be made by the lodge, and the lodge did not object, nor has it appealed. It was immaterial, also; the trust was declared in Bailey Inglish’s deed. They had notice and made inquiry, and were, or might have been, fully acquainted with the history of its creation and its objects before they received the conveyance to them. It even appears that their attention was specially called to the fact, by various persons, that the property was subject to the trust, and they were acquiring no title by the purchase. It did not concern the Carletons in fact by whom the money was paid or the contributions were made. Abbott’s Trial Ev., 295; Reeves v. Bass, 39 Tex., 295; Greenleaf, Ev., 288 et seq.; Wharton’s Ev., 1042, 1044.

6. The assignment of error in the judge’s charge is made in these terms: “The court erred in the charge given to the jury, as shown by bill of exceptions.” Referring to the bill of exceptions, we find the exception to be “ to the charge as given by the court to the jury.”

So, also, the assignment of error in refusing charges is stated in the same general terms: “The court erred in refusing to give the jury the charges asked by defendants, Ros. 1, 2, 3, 4, 5, 6, 7 and 8;” and these numbers comprise all the charges asked..

Repeated decisions of the supreme court have determined that an assignment of error in these terms is not a sufficient compliance with the provisions of the statute, which requires that they shall be specific, and provides that all errors not so distinctly specified shall be considered by the supreme court as waived. Pas. Dig., art. 1591; Clements v. Hearne, 45 Tex., 415; Elliott v. Mitchell, 28 Tex., 107; Howard v. Colquhoun, 28 Tex., 134.

We have examined, however, the record carefully, and find no error apparent in the charges given or in the refusal to give those asked.

The charges asked and refused were, in the main, a reiteration of the propositions which we have considered, as urged in the defendants’ demurrer — that the “stockholders of Bonham Masonic Female Institute must be stockholders in a joint-stock company or incorporation, and have a legal existence, capable of suing and being sued; that they must have articles of association recorded, or otherwise the plaintiffs cannot recover. That the parol evidénce offered in respect to the trust deed was not competent proof; that the plaintiffs must prove the consideration of the deed paid by them.” These charges were properly refused. Others were asked upon the subject of acquiescence by the plaintiffs, of which there was no proof.

[Opinion delivered November 1, 1880.]

7. The assignment that the verdict is against the evidence is subject to the same objection as the preceding, and might be passed without comment. But looking into the statement of facts, we cannot say that it is without evidence to support it. The material facts stated in the petition were proved by competent testimony — the creation of the charity, the contributions toward it by the plaintiffs and others, defendants’ knowledge of the trust, and the diversion of the property to other uses. The defendants claimed the property as their own, and held it adversely to the plaintiffs as discharged of any trust.

Whether, under the circumstances of the case, they had any equity to claim a restoration of the money they had paid, or whether anything might be due them upon taking an account of the rents and the value of improvements, is not before us for consideration. There is no judgment for rents or damages, and they have asked no relief.

We find no error committed which would require a reversal of the judgment, and it will be affirmed.

• Affirmed.


text:
    Thomas Dwyer v. S. S. Hosea et als.
    (Case No. 3909.)
    1. Practice.— That the ruling of the court upon the pleadings of the parties was erroneous is not sufficient cause for reversing the judgment if it is clear that no injury resulted therefrom. Hardy v. De Leon, 5 Tex., 333.
    3. Evidence.— Where the ownership of land is alleged in the petition for injunction under oath, and not denied in the answer, the production of the deeds under which the plaintiffs claim, with proof of possession to the time of the institution of the suit, is sufficient evidence of title to support the action. Abbott’s Trial Evidence, 631.
    3. Injunction—Closing alley in city.— In 1844 the town of Brenham was laid off into blocks, lots, streets, alleys and squares. Lots were sold, and in the conveyances to the purchasers they were designated by their number and block only, as they appeared on the map of the town. On September 23, 1871, an ordinance was passed by the city authorities of the city of Brenham, reciting that the alleys were a public nuisance, and petitioning the legislature to authorize their sale. An act was passed accordingly, and on March 27, 1872, the mayor sold a portion of one of the alleys and executed a deed therefor. The purchaser began closing the alley by building a wall across it, and the owners of the lots abutting on the alley sued out an injunction restraining him from closing the alley. Held:

    (1) The owners of the lots on the alley, or their vendors, having purchased with reference to the map or plan of the city, acquired as appurtenant thereto a property in all such rights, easements, privileges and servitude, represented on such map as belonging to them, in the alley on which the lots abutted, which neither the legislature nor city authorities could take away, except in modes prescribed by law upon making compensation .therefor.
    (2) The conveyance from the city to a portion of the alley passed no title thereto, and the purchaser was properly restrained from closing it. Lamar Co. v. Clements, 49 Tex., 355; Warren v. Lyons City, 22 Iowa, 351; Haynes v. Thomas, 7 Ind., 38; Dillon on Mun. Corp., 630.
    4. Limitation—Three years.— Adverse possession of an alley under a deed to the lots abutting on it will not support the plea of the statute of limitation of three years. City of Galveston v. Menard, . 23 Tex., 409.
    5. Limitation — Five years.— A deed from a city to a portion of an alley will not pass title thereto, but adverse possession under such deed and payment of taxes for the required time will support the statute of limitation of five years.
    Appeal from Washington. Tried below before the Hon. E. B. Turner.
    The facts are stated sufficiently in the opinion.

      Sayles <& Bassett, for appellant.

      Breedlove & Ewing, for appellees.
   Quinan, J.

This suit was instituted by Elizabeth Penker and Hosea and wife to enjoin the defendant Thomas Dwyer from obstructing an alley between lots 47 and 50, and the lot 49, in the city of Brenham, and for the removal of obstructions therein.

0 The plaintiffs’ petition alleges the ownership of the lot 47 in Adeline Hosea, on which, in 1875, she erected a brick' building worth $10,000, and the ownership of lot 50 in Elizabeth Penker, on which, in 1873 and 1875, she erected a brick building worth $8,000. They show the laying off of the town by commissioners in streets, alleys and squares in 1844, and exhibit a plat showing the location of their lots and the alle\% The northern one-third of the lot No. 49 is owned by the defendant Dwyer. Between that and the lot 50 is an alley twelve feet wide, running from the public square of the city, between lots 50 and 47 on the north, and lots 46 and 49 on the south. They allege that the alley was a public way for all the citizens of the town; that it greatly enhanced the value of the lots 47 and 50; that they » purchased and became the owners of the lots, and built houses and made improvements, in full faith that the alley, as designated upon the map, by reference to which they purchased, would remain forever open; that Dwyer has taken possession of the southern half of said alley, between lots 50 and 49, and has begun to erect a brick and stone building thereon; that he has obstructed and partly closed up the alley, so as to render it useless as a thoroughfare, and, if suffered to erect and finish his building, it will interfere with the free admission and circulation of light and air in the alley and depreciate the value of their property, and they have been damaged $2,000 already thereby.

Plaintiffs filed an amended petition, averring that the suit was instituted for themselves and on behalf of all other citizens of Brenham interested in the controversy. On this petition an injunction was granted.

The defendant excepted to the sufficiency of the petition . because of the misjoinder of parties plaintiff, there being no privity or joint interest between them, etc.

The answer admits the laying off the town and sale of lots according to the plat, alleging that the purchasers acquired title to the center of streets and alleys on which those lots abutted; claiming that the' alleys had been abandoned as public passways, and that the city authorities, declaring the alleys to be nuisances and not needed by the public, and being authorized thereto by the legislature, advertised the alleys for sale and sold them, the defendant’s vendees purchasing the-south half of the alley on which defendant’s lot abutted and on which he is building. The defendant further pleads that the plaintiff, Mrs. Penker, and those under whom the defendant claims, had inclosed, in 1866, the alley with a high fence, and it had remained so till September, 1873, when it was destroyed by fire, after which Mrs. Penker again inclosed the north half of the alley in front of her lot.

Defendant also pleads the limitation of three years under his title. There is no general denial pleaded.

The cause was submitted to a jury, who returned a verdict for the plaintiffs; and judgment was rendered thereon perpetuating the injunction and directing the removal of the obstructions, etc.

The defendant moved for a new trial, which was refused, and this appeal was prosecuted.

The assignments of error are numerous. We shall notice specially those only which we consider material.

1.' Whether the exceptions of the defendant to the plaintiffs’ petition, because of the misjoinder of the plaintiffs, were properly overruled by the court, might perhaps present a question of some difficulty, were it necessary to determine it. If, as seems to be conceded by appellant’s counsel. Mrs. Penker and Hosea and wife might well join in a suit to abate the public nuisance occasioned by the obstruction of the alley upon which their property abutted, yet it would seem they should not be permitted to sue jointly for damages suffered severally by them, by reason of the injury to their property not owned jointly. But, although claimed in the petition, no damages were recovered. The judgment of the court is such a judgment as, if the allegations of the petition, except as to damages, were sustained by the proofs, could rightfully be rendered in the case, and it is not perceived in what way the defendant has been or could have been injured by the improper joinder of the plaintiffs, if they were improperly joined. Though the misjoinder of parties plaintiff who have no joint interest in the subject-matter may be taken advantage of on demurrer, yet the court will sometimes permit a decree when it appears that, notwithstanding the misjoinder, justice can be done to all parties. Story’s Eq. PL, 340. And in Raffity v. King, cited at page 573, it is said, there have been cases in which the court, with a view to special justice, has overcome the difficulty of a misjoinder of plaintiffs.

In our practice, that the ruling of the court, upon the pleadings of the parties, was erroneous, has never been held sufficient cause for reversing the judgment, if it be clear that no injury has resulted therefrom. Hardy v. De Leon, 5 Tex., 233.

The material questions involved in the case, as presented, are:

1. 'Did the plaintiffs show a right to the relief asked?

2. Has that right been lost or superior rights been acquired by defendant?

And the answer to these questions will be sufficient to determine the controversy, without necessarily reviewing in detail the many points raised and propositions made in the briefs of counsel, or-following the order in which they have presented them for consideration.

1. The plaintiffs sufficiently proved title to the lot claimed by them.

Their ownership was alleged in the petition under oath, and not denied in the answer. They produced the deeds under which they claimed and their possession of the lots severally held by them from the 'year 1866 to the institution of the suit. And this was sufficient proof of title in this action. Abbott’s Trial Evidence, 634.

2. It was proven that in 1844 the town of Brenham was laid, off into blocks, lots, streets, alleys and squares, and a plan of the town was produced showing the designation of the block composed of the lots 49, 50, 46 and 47. There were streets sixty feet wide on east side of the block, and the lots were intersected by alleys crossing each other in the center of the block, twelve feet wide. The sale of the lots was made and conveyances executed to the purchasers by the proprietors, designating them by their numbers on the plat of the town and not otherwise.

3. It was shown that at and before the institution of this suit the defendant Dwyer was engaged in erecting a solid wall of brick and stone upon and including the south half of the alley between the lots 49 and 50, part of a building being erected by him on the north one-third of lot 49, abutting on the alley; that the erection of the brick wall as contemplated by defendant would obstruct travel through the alleys, would interfere with the free passage of light and air; that closing the alleys would make, the buildings less desirable to tenants, and would have a tendency to reduce the rents, the doors being useful for loading and unloading-merchandise. As to Mrs. Penker’s building the volume of light and air would be reduced one-half; as to.the other building in a less degree, but somewhat.

4. It was shown that defendant had notice that his right to obstruct the alley would be contested by Hosea; that his vendors had informed him that they would not have sold but for the apprehension of litigation with Hosea, and they sold for a less price on that account. When Dwyer was spoken to after service of the injunction, he declared he expected it, and had as much money to spend, in litigation over the alleys as the plaintiffs.

This proof, prima facie, made out the plaintiffs’ case, and unless its force is overcome by the countervailing defense of Dwyer, fully warranted the judgment rendered. '

“ It has been repeatedly held,” says Mr. Justice Moore in Lamar Co. v. Clements, 49 Tex., 355, “ by this court as well by many others, that where the owner of land lays out and establishes a town, and makes and exhibits a map or plan of the town with streets and public squares, and sells the lots with reference to such plan, the purchasers acquire, as appurtenant to their lots, all such rights, privileges, easements and servitudes, represented by such map or plan to belong to them or to their owners; that the sale and conveyance of lots according to suchf map implies a grant or covenant for the benefit of the owners of the lots; that the streets and other public places represented by the map shall never be appropriated by the owner to a use inconsistent with that represented by the map on faith of which the lots are sold, and especially so where the use to which the owner proposes converting them tends to lessen the value of the lots thus sold.”

They acquire a vested interest therein that the legislature cannot destroy. Warren v. Lyons City, 22 Iowa, 351; Haynes v. Thomas, 7 Ind., 38.

And it is settled that a party entitled to a right of way over a street will be protected in the enjoyment thereof by restraining the erection of obstructions thereon. Individual owners of lots abutting on streets, and who have made valuable improvements thereon, have such rights and interests as will entitle them to an injunction to restrain the appropriation of the streets by others to their private use, or to any use inconsistent with the use to which they were dedicated. Dillon on Mun. Corp., 630 and 633.

Defendant Dwyer’s defense is:

1. That the alleys in Bren ham have been abandoned as public pass ways, and especially the alley between lots 49 and 50, and that the plaintiff Penker had closed it up.

2. Title acquired by a sale made by the city.

4. Limitation of three years.

1. His proof established his title to the lot—to the northern one-third of the lot 49, abutting on the alley in question.

2. That the city authorities of Brenham, on 2d April, 1867,. passed an ordinance proposing to sell the alleys to the proprietors of the adjoining lots, as the alleys “ were not required or necessary.” And again on 23d September, 1871, another ordinance reciting that the alleys were a public nuisance and built upon, etc., and petitioning the legislature to authorize the sale of them. An act of the legislature was •passed accordingly, and on 27th March, 1872, the mayor quitclaimed to one Wm. Kieke for $-, the south half of the alley between lots 49 and 50. This deed is recorded 30th April, 1875. Kieke sold to Werner, and Werner to Dwyer.

3. There was evidence tending to show that plaintiffs had free access, light and air to their lots and buildings by other streets and unobstructed alleys abutting on their lots.

4. That Elizabeth Penker’s first husband, in 1866 or 1867, inclosed the north half of the alley with a high fence, and erected a pigeon house, privy, and dug a well in the alley, which structures remained until September, 1873, when they were destroyed by fire, and were renewed the following year and still remain.

4. That Hosea’s tenants, without his consent, but with his knowledge, at x7arious times, but not continuously, from 1869 to the time of the trial, had erected privies in and across the alleys, betxveen lots 46 and 48, lot 46 being vacant. He said he xvould make no objection if the city authorities would not.

5. That in 1866 or 1867 Dwyer’s xmndors had inclosed the south half of the alley xvith a close high plank fence meeting Mrs. Penker’s, and so excluding the public until 28th September, 1873, xvhen it was destroyed by fire. The defendant’s lot and the south half of the alley has remained vacant from that time until December, 1877. Hntil after the fire in 1873, lot 46 was not built on.

These defenses, we are of opinion, will not avail to defeat the plaintiffs’ recovery.

1. It may be conceded that the occupation by Mrs. Penker of the north half of the alley would estop her from objecting to the inclosure of the south half by Dwyer, and from claiming the right as against him to reopen it; but it could not deprive her of the right to object to the erection of such buildings thereon as would obstruct the free access of air and light to the buildings she had erected. But surely there is nothing in the proof of any acts done by Hosea and wife xvhich could be construed into an assent by them to the obstruction of the alley as a common passway, or to the erection of buildings thereon which xvould interfere xvith the full and free enjoyment of the benefits and advantages to be derived from it.

2. As we have seen, the plaintiffs, by the purchase of the lots with reference to the plan of the city, acquired, as appurtenant thereto, an easement in the alley upon which their lots abutted. They erected valuable buildings upon their lots on the faith that the alley should remain forever open. It was part of their contract of purchase. And their property, so acquired, is as much protected by the constitution and laws as other property. Neither the legislature nor the city authorities can take it from them except in modes prescribed by law, and upon making compensation therefor. The conveyances by the city authorities to Dwyer’s vendors of the portion of the alley he claims passed no title. The charter of the city conferred upon them the power, and it became their duty, to preserve the health and peace of the city, but it did not confer upon them the power, by suffering, in violation of this duty, the alleys to become a nuisance, to declare them so, and then sell them. This would be a cheap mode of acquiring property.

3. The plea of three years’ limitation cannot be sustained. Admit that the conveyances to the purchasers of the lots passed to them the title to the soil to the center of the alley upon which the lots abutted, it was subject to an easement in the alley for the public and the adjoining proprietors. The right of way for the citizens over it, and of its free use and enjoyment by the owners of the adjoining lots, was as fully reserved as if expressed in so many words upon the face of the conveyance. And it was in effect conveyed to the purchasers of the lots 47 and 50, abutting on the alley, who bought by the plan of the city. . So that the conveyance by the city to Dwyer’s vendors, for their private and exclusive use, of the south half of the alley, was a conveyance of what they had already sold. It was such a deed as, with adverse possession of five years, and the payment of taxes, might mature into a title to the alley; but certainly was not a link in an unbroken transfer chain of title under the sovereignty of the soil, to be prescribed under in three years. City of Galveston v. Menard, 23 Tex., 409.

■ An objection is made to the form of the verdict rendered by the jury, that for the “ plaintiff,” in the singular, and it appears that the judge directed the clerk, as near as he could, to reproduce the word in the transcript for our inspection. We think it badly spelt, but sufficiently clear that it means the “ plaintiffs,” and so the judge who received it adjudged it. It was for him to determine the matter.

[Opinion delivered November 1, 1880.]

The views we have expressed sufficiently respond to the assignments of error.

We conclude that there is no error in the judgment and that it ought to be affirmed.

Affirmed.


author: Walker, P. J.

text:
    Stone & Nicholson v. Heirs of Richmond Crawford.
    (Case No. 3425.)
    1. Land—Void executor’s sale—Purchaser subrogated to rights of creditors.— An executor under a will, which did not give him power to sell, sold land to pay debts against the estate without obtaining an order of sale from the probate court. In a suit by the heirs to recover the land on the ground that the sale was void, the purchaser or his vendee, the purchase money having been used to pay debts of the ancestor, is entitled to be subrogated to the rights of the creditors, and to retain possession of the land until his money and interest is repaid to him. 48 Tex., 257 ; 5 Tex., 291; 9 Tex., 813; 13 Tex., 118; 21 Tex., 288; id., 774; 19 Tex., 205; 38 Tex., 219; 29. Mo., 152; 1 Dev. & Bat. Eq.-, 427 ; 29 Wis., 182; 8 Grattan, 320; 11 Martin, 607; 40 Wis., 66. ■
    Appeal from Washington. Tried below before the Hon. E. B. Turner.
    The opinion of the court states the facts,

      Giddings <& Morris, for appellants.

      Saylss & Bassett, for appellees.
   Walker, P. J.

This was a suit brought by Lila Crawford and ethers, as heirs at law of Richmond Crawford, deceased, to recover an undivided half of a tract of land containing five hundred and fifty-three acres, against Warren Stone and L. M. Nicholson. Plea, “ not guilty,” and a suggestion of purchase in good faith and the making of valuable improvements, and also that the debts of the estate exceeded the assets of the estate, and that all the means, assets and property of the estate were exhausted by the executors and appropriated to the payment of the debts of the estate.

The plaintiffs claim the land in controversy as the heirs at law of Bichmond Crawford, who died in September, 1856, and it is admitted, in the agreed case before us, that, upon the facts in evidence, there is no error in the judgment of the court rendered in favor of the plaintiffs, “ unless the title to the land in controversy rvas divested out of said plaintiffs, and plaintiffs are estopped from recovery of the same by reason of the following facts proven on the trial.”

The facts referred to are, in substance, that Bichmond Crawford purchased the land in July, 1853, for the sum of $7,059, payable in three instalments, he receiving from his vendor a bond for title stipulating for a conveyance upon the payment of the purchase money. At his death one instalment of the purchase money was due and unpaid. He had occupied with his family and cultivated the land from the date of his purchase until his death. By his will, which was duly admitted to probate by the county court of Washington county, he appointed W. C. Degges, his wife, Mary Crawford, and his brother, Menton Crawford, his executors; directed them to collect debts due him, to pay the debts due from him, and perfect the title to his land (referring to the. land in controversy), and upon final settlement deliver his estate to his legal heirs. Degges and Mary Crawford qualified as executors in the county court of Washington county, taking possession of his real and personal estate, the latter consisting of negroes, mules, cattle, cotton and corn.

On the 8th of April, 1857, the executors paid the last instalment of the purchase money, and received from the vendor a deed conveying the land in controversy to themselves as executors of Bichmond Crawford and to the heirs of said Crawford.

On the 20th of June, 1859, Degges, as executor of said Bichmond Crawford, conveyed the land in controversy to J. G. Hunt by deed reciting the payment of a consideration of $10,860, which was the foil value of the land. On the same day Hary Crawford, reciting a consideration of $10,860, “ this day paid by said Hunt to W. C. Degges, as executor of her deceased husband, Eichmond Crawford,” conveyed by quitclaim deed all her right, title and interest in said land to said Hunt. That the defendants are in possession of the land under conveyance, with warranty from Hunt, in good faith, for a valuable consideration of money equal to the full value of the land paid by them to their vendors.

No application for the sale of the land in controversy to the county court in which the administration was pending was ever made by the executors, nor did said court ever make an order for the sale of the same, but the land was sold at private sale by the executor, Degges, to J. G. Hunt, Hary Crawford on the same day quitclaiming her interest in the laud to Hunt, as has been already stated, and there is no provision in the will taking the estate out of court for the purpose of administration, or authorizing the sale of his property by his executors without an order of court.

On the 23d of June, 1859, Degges filed his petition in the county court, stating that he had sold and conveyed the land to J. G. Hunt for the price of $10,860, arid that he was authorized by the will of Eichmond Crawford to dispose of the land as to him, said executor, might seem best; that the sale was an advantageous one to the estate, which was then largely indebted; that by said sale the estate will be relieved from debt; and prayed for a decree of confirmation of the sale which had been thus made.

At the succeeding July term of the court there xvas rendered a formal decree or order confirming the sale, ordering the return of sale to be recorded, and decreeing that all the risfht, title, interest and claim in and to said tract of land be divested out of said estate and vested in said J. G. Hunt.

It is admitted that all the property of the estate, inclusive of the land, was duly inventoried, appraised and approved by the court.

On final settlement of the account of the executor, Degges, which was tiled in March, 1870, it appeared that all the property and assets of the estate had been accounted for, and from the sale thereof there had been realized §16,735.79. That the sum of §17,760 had been paid out on established claims against the estate, for which vouchers were produced, and that the debts due by the estate exceeded by §2,328.50 the assets of the estate. That the final account was duly approved by the probate court, the estate closed and the executor fully discharged prior to the filing of this suit on the 28th day of July, 1874. It is admitted that the estate was insolvent; that all the property was the community property of the deceased and his wife, Mary Crawford, and was subject to administration, and that the debts which were paid were the debts of the community estate. A jury was waived and the cause submitted to the court. Judgment for the plaintiffs as prayed for in petition, and decree for partition on the basis of allowing the defendants the benefit of improvements made by them, and judgment also against the immediate warrantors of title to defendants on their covenants of warranty, etc. The defendants appeal, and assign as error that the judgment is contrary to the evidence; that, upon the whole case, the court should have rendered judgment for the defendants.

The judgment complained of was evidently based upon the proposition that the want of an order of the probate court authorizing the executors of the will to sell the land was fatal to the validity of the title which they conveyed to Hunt, and that the heirs of Crawford were not divested thereby of the title to the land cast upon them by inheritance; that this cause of invalidity rendered the conveyance to Hunt absolutely null and void, and was not cured by the ratification and approval of the sale formally made by the probate court, and which also decreed the divestiture of Crawford’s estate of the title to the land, and investing the same in Hunt.

Hnder the view which we have taken of this case, we need not, nor will we, discuss the question as to whether, upon the facts disclosed by the record, Hunt acquired a valid title, or at all events one valid as against its impeachment in a collateral proceeding. We will remark, however, that it admits, at least, of question, whether, under the facts of the case, the action of the probate court taken upon the petition of the executor for the approval and confirmation of the sale, was not such a judicial determination upon and construction of the powers conferred by the wfill upon the executors in respect to their right to sell the land without an order of court, as to render the adjudication thus made final and conclusive as to all the world, so far as a mere collateral impeachment thereof is concerned.

Article 1324, Pasch. Dig., provides that u whenever, in a will, power is given to an executor to sell any property of the testator, no order of the-chief justice shall be necessary to authorize the executor to make such sale; and when any particular directions are given by a testator in his will, respecting the sale of any property belonging to his estate, the same shall be followed, unless creditors or heirs may thereby be prejudiced in their rights.” The petition for confirmation of the sale distinctly asserted the existence in the executor under the will of such -a power, viz., “ to dispose of the land as to him might seem best.”

The ordinary power, authority and duty to order sales of property of an estate is vested in the court; and as has been shown, such power may, by the will, be withdrawn; whether it shall or not be exercised by the court must depend upon the construction of the will. The determination of the question involves that of the court’s jurisdiction over the subject-matter of sales of property; the power of the court to order a sale; and the question is a legal one, which it would seem must be incidental to, and necessarily arising for determination by the court whenever the necessity for a sale of property shall arise. The question was presented in the manner as has been stated, resulting in the recognition and approval of the sale; and the order made by the court, by implication, at least, affirmed the construction placed by the executor upon his power to sell the land under the authority given to him by the will.

The probate court possessed jurisdiction exclusively of the administration and settlement of the estate, and if the determination thus made of its authority to sell the land came properly within the exercise of that jurisdiction, and if it did in fact adjudicate, under proper proceedings, the issue in question, it allows, as we have already said, a question to be made whether the judgment rendered in the premises, even though it were erroneous; shall not be deemed conclusive until reversed, set aside or annulled by some direct proceeding for that purpose. If so, it would follow that, for the purposes which affect the title to the land, its invalidity could not attach for want of an order of the chief justice ordering a sale of the land. As before remarked, however, we shall not attempt to dispose of the legal question involved under the view of the facts to which we have referred, but will treat and consider the case as if the supposed invalidity in the title to J. G. Hunt did in fact exist (as, in fact, it may exist), as the same has been argued in the briefs of the counsel.

We are clearly of the opinion, upon the case stated, that the equities which attached in favor of J. G. Hunt, the purchaser from the executor, certainly entitle the defendants to protection in a court of equity, and that the plaintiffs are not entitled to recover the land, except under favor and direction of the broad principle of equitable jurisdiction which operates to prevent a man from enforcing a legal and unconscionable advantage over another who is without fault .and has acted in good faith, except by “ doing equity ” himself, which will not allow him to have an advantage which it is contrary to the principles of equity that he should be permitted to enforce or to retain; for “ chancery hath jurisdiction to correct the rigor of the law by the judgment and discretion of equity and grace.”

It is not necessary to enter upon a discussion of the rules of law* nor refer to the conflict of decisions in different states, which distinguish against a mere volunteer who purchases at a judicial sale of property, and who, according to some authorities, will not receive protection under the doctrine of subrogation; it is sufficient, for the purposes of a proper decision of this case, to show that the transaction, whereby Hunt became the purchaser of the land, was one wherein he occupied a relation which, according to the generally recognized doctrine in this country, he is entitled to protection—that the sale was not tortious; that he purchased in good faith and paid full value; that the sale and its proceeds were applied to the removal of the incumbrance of debts which were a charge upon the land; and that the heirs to the land have received the benefit in the discharge of said debts, and in the perfection of the title to the land, by means of purchase money paid by Hunt.

On the death of Kichmond Crawford the debts and obligations of the community became a charge upon the common property which was required to be satisfied; besides, a large instalment was due as purchase money upon the land, and the special lien and charge of the vendor rested upon it, and was required to be paid in order to obtain title thereto. Subject to these charges and incumbrances, the estate of Crawford vested in the heirs. Johnson v. Harrison, 48 Tex., 257.

The sale of the land, therefore, thus made, even though made without legal authority, was nevertheless made in good faith and in the course of the general duty of the executor to preserve the estate, perfect the title to the land, and discharge the debts, and the purchase made being in like good faith, the purchase money which was paid being directed, as it was, to relieve and disincumber the estate of the charges and incumbrances upon it, places the rights of the purchaser on a footing as meritorious, and as much entitled to protection as against the claim of the heirs set up in this suit, as a purchaser at sheriff’s sale would be where the sale proved to be invalid, and the purchase money having been applied to the satisfaction of the judgment. In the latter case, it has long been settled in our state that where a sale has been made on an invalid execution, issued on a valid judgment, and the money paid to the satisfaction of the judgment, and there has been no fraud, the purchaser will not be compelled to restore the property purchased, until reimbursed the amount, paid by him. Howard v. North, 5 Tex., 291; Horan v. Wahrenberger, 9 Tex., 313. In the latter case it is strongly intimated that a third person (other than the plaintiff in execution) thus purchasing, even-under.a judgment which was void, and paying the purchase money in satisfaction of the debt, would have an equity entitling him to relief from the debtor. The same principle announced in Howard v. North has been subsequently repeatedly reaffirmed. See Bailey v. White, 13 Tex., 118; Andrews v. Richardson, 21 Tex., 288. And in the case of Morton v. Welborn, 21 Tex., 774, Chief Justice Wheeler said, “and under the decision of this court in the case of Howard v. North, supra, the plaintiffs cannot recover the property without reimbursing the purchase money paid which went to the satisfaction of the judgment against their ancestor. This is according to the plainest dictates of reason and natural justice; and this they have not done, nor offered to do. They therefore have not shown themselves entitled to recover in this action by averment or proof.”

The same principle was again applied in the case of a purchase under a void sheriff’s sale. Johnson v. Caldwell, 38 Tex., 219. A person seeking to cancel a sheriff’s deed as a cloud upon his title .must first repay the amount for which the property was sold by the sheriff. Herndon v. Rice, 21 Tex., 457; Morton v. Welborn, 21 Tex., 773; Brown v. Lane, 19 Tex., 205.

The principle thus so long and firmly established by our supreme court in its application to invalid and void sales under execution seems to have, on reason and principle, like adaptation to probate sales; and consistently with this hypothesis or corollary, this view is maintained by Mr. Freeman in his treatise on void judicial sales, which he supports by cases of high authority. He remarks, “ nor is the claim to subrogation confined to those cases where a mortgage or some other record lien has been paid off by the sale.” (Referring to the case of a void administrator’s sale, in which the purchaser was protected under the doctrine under consideration, in the case of Valle v. Fleming’s Heirs, 29 Mo., 152.) “ The estates of deceased persons,” he proceeds to say, “ are liable to be sold for the payment of the debts of the decedents, whether such debts are liens or not. If, by a sale of the lands of a decedent, his debts are paid, and it turns out that the sale is void, the purchaser has the right to be subrogated to the claims which he has by his purchase paid; and he has also the right to retain possession of the properly as security for the repayment of the sums to which he is entitled.” The author cites and quotes at considerable length, in support of this doctrine, several well-considered cases of high authority. Scott v. Dunn, 1 Dev. & Bat. Eq., 427; Valle v. Fleming’s Heirs (supra); Blodgett v. Hitt, 29 Wis., 182; Hudgin v. Hudgin, 8 Grattan, 320; Dufour v. Camfranc, 11 Martin, 607 (2 Cond. La. Rep., 243). The following other cases are also cited as being in harmony with the case of Blodgett v. Hitt (supra), which fully explores and expounds the principle, viz.: Bright v. Boyd, 2 Story, C. C., 605; Mohr v. Tulip, 40 Wis., 66; Grant v. Loyd, 12 S. & M., 191; Levy v. Riley, 4 Or., 392; Chambers v. Jones, 72 Ill., 275; Short v. Porter, 44 Miss., 533; Williamson v. Williamson, 3 S. & M., 715; Douglass v. Bennett, 51 Miss., 680; Hudgin v. Hudgin, 6 Grattan, 320; Winslow v. Crowell, 32 Wis., 639; Dunbar v. Creditors, 2 La. Ann., 727; Stockton v. Downey, 6 La. Ann., 581; Ragland v. Green, 14 S. & M., 194; Haynes v. Meeks, 10 Cal., 110. Upon these authorities, which we deem quite satisfactory, consistent with justice, and the decisions of our own courts bearing upon the principles involved in this case, we conclude that the plaintiffs were not entitled to recover the land sued for except upon the condition of paying to the assignees of J. G. Hunt one-half of the amount of the purchase money paid to the executor, with legal interest thereon from the date of payment. The decree should in such case fix a period within which the plaintiffs should pay the money into court, prohibiting the issuance of a writ of possession until said payment was made, and decreeing, further, that if the plaintiffs failed to pay within the time limited in the judgment, that the title to the land should be vested in the defendants, if they are shown to be invested with Hunt’s title. Bailey v. White, 13 Tex., 117; Brobst v. Brock, 10 Wall., 533; and see Prince & Zuber v. Malone, decided by this court at the present term.

The rights of the defendants to a like equitable adjustment in respect to the improvements made upon the land are not questioned, it seems, in the agreed case before us, and it appears from the decree of the court, contained in the record, that they were considered and acted upon by the court; yet the facts agreed on contain no statement in relation to the subject of the improvements nor their value; nor, indeed, is any complaint made by the appellants concerning this branch of their-case, but, to the contrary, the parties agree that upon the facts in evidence there is no error in the judgment of the court, unless the title to the land in controversy was divested out of said plaintiffs, and the plaintiffs are estopped from recovery of the same by reason of the facts,” which are recited in the-agreement, and which have already been mainly given in the statement of the case. In this connection, however, it is not amiss to refer to the well established doctrine which applies to the case, and is thus stated by Judge Story in the case of Bright v. Boyd, 1 Story, 478, and 2 id:, 605: “ A bona fide purchaser for a valuable consideration, without notice of any defect in his title, who makes improvements and meliorations upon the estate, has alien or charge thereupon for the increased value which is thereby given to the estate beyond its value without them, and a court of equity will enforce the lien or charge against the true owner, who recovers the estate in a suit at law against the purchaser.”

In view of the limitations expressed by the parties in the agreed statement before referred to, and to the state of the record as the same is presented to us, we deem it inappropriate to anticipate the equities requiring adjustment between the parties in regard to improvements, use and occupation, if any such should be set up, or to attempt to prescribe or indicate the rules which should govern the court trying the case, applicable to the proper settlement of these collateral and incidental equities.

[Opinion delivered November 1, 1880.]

Reverting to the proposition which has been expressed, that the plaintiffs are only entitled to recover upon making payment to the assignees of J. GT. Hunt, we find it laid down that “ when a void sale is made under proceedings to foreclose a mortgage, there seems to be no doubt that the purchaser succeeds to the title and rights of the mortgagee, and may enforce them as the mortgagee could have done but for the sale.” Freeman’s Void Judicial Sales, sec. 50. Citing Brobst v. Brock, 10 Wall., 519; Jackson v. Bowen, 7 Cow., 13; Gilbert v. Cooley, Walker’s Ch., 494. Applying the analogies of this principle to the case before us, we conclude that the defendants, holding as vendees under conveyances from Hunt, are subrogated to his rights, and have succeeded to them, and are entitled to claim their beneficial enforcement in their favor, and therefore to receive the money which Hunt would have been entitled to in case he had never conveyed, and this action had been brought against him alone.

For the reasons given, it is our opinion that the judgment in this case shall be reversed and that the cause be remanded for further proceedings.

Reversed and remanded.


author: A. S. Walker, J.

text:
    Wm. M. Rice v. Malinda Soders.
    (Case No. 2858.)
    1. Equities — Purchaser for value—Pre-existing debt.—Crediting on a pre-existing debt due the firm, by his vendor, the price of land conveyed by the debtor to one of the members, is, as against prior equities of third parties therein, a sufficiently valuable consideration to support a conveyance of land to the vendee, where he has no notice of such equities. Greneaux «. Wheeler, 6 Tex., 528; Blum v. Loggins, 53 Tex., 121; Planters’ Bank v. Evans, 86 Tex., 495;. Alstin v. Cundiff, 52 Tex., 464; Johnson v. Newman, 43 Tex., C42.

      Appeal from Falls. Tried below before the Hon. D. M. Prendergast.
    On the 29th of July, 1874, the appellee, Malinda Soders, filed her suit against E. C. Stuart, administrator of S. S. Ward, deceased, alleging the execution of the notes sued on by S. S. Ward to her in consideration of one thousand two hundred and eighty acres of land described in her petition; the proof and presentation of the claim against the Ward estate, and its allowance and approval; the nonpayment of the notes, and that appellant Rice had acquired the “ equity of redemption ” of the land, and praying a foreclosure of her vendor’s lien.
    The defendant Stuart failed to answer. Appellant answered, alleging his purchase of the land from Ward, without notice of appellee’s vendor’s lien, for a valuable consideration.
    The testimony adduced on the trial was as follows:
    Plaintiff read in evidence the notes described in the petition, their probate, presentation, allowance and approval against Ward’s estate. The notes bore date 2d October, 1867.
    Plaintiff then proved by J. W. Watkins “ that, after the notes described in plaintiff’s petition had been made by S. S. Ward to the plaintiff, she deposited them and two other notes, bearing even date and of like amount, xvith witness for safe-keeping and collection. That Ward, in paying the other two notes, told witness that these notes were given for one thousand two hundred and eighty acres of land described in plaintiff’s petition.”
    The plaintiff, being sworn, testified “that, shortly before the death of A. L. Soders, he sent for Ward and sold him the land described in plaintiff’s petition and took the notes sued on from him, payable to plaintiff, for a part of the purchase money, saying that he wanted her (plaintiff) to have the benefit of the land, and that he thought it would be better for her to have the notes than the land left her. And A. L. Soders gave her the notes.”
    Plaintiff then proved by F. A. Rice:
    “ That he bought the land described in the petition from "S. S. Ward for Wm. M. Rice.”

      “ That he did not know of any vendor’s lien being on the land.”
    “That Wm. M. Rice did not pay anything out on the land, but that S. S. Ward was largely indebted to Wm. M. Rice & Co. at the time of the purchase, contracted long before, and that the price of the land was credited on the debt due Rice & Co. by Ward. The price of the land credited to Ward was $2 per acre. That he bought other property at the time on this debt, and after giving Ward credit therefor, there was still due thereon about $7,000.”
    “ At the time of the trade I examined the record and found no lien and inquired about the title, and Ward declared to me that the title ivas clear. ”
    Defendant read in evidence the deed from A. L. Soders to S. S. Ward, dated September, 1867, conveying the said land. The deed recited receipt of the full consideration, $600. The deed from Ward to Rice is a warranty deed.
    Judgment was rendered for plaintiff, subjecting the land to the notes, ordering sale, and subrogating Rice to the plaintiff’s rights against the estate of Ward.
    Rice appealed, assigning as error:
    1. “ The court erred in adjudging the notes sued upon to be a lien for the purchase money on the land described in the petition, because the facts do not show that the notes were given for the purchase money, the notes being dated October 2, 1867, and the deed from Soders to Ward being dated September, 1867.”
    2. “ The court erred in rendering judgment enforcing the lien of the notes against the land, because Rice appears to have been an innocent purchaser, Iona fide and for a valuable consideration, without notice,” etc.

      T. P. & B. L. Aycock and D. U. Barsisa, for appellant.

      Goodrich <& GlarTcson, for appellee.
   A. S. Walker, J.

The testimony was sufficient to show the lien as against Ward’s estate.

In considering the second assignment there has been some difficulty, owing to the inconsistent, if not contradictory, decisions, even in our own courts, upon the question.

The vendee taking a deed acknowledging on its face the payment of the purchase money is at least the holder of the apparent legal title against his own vendor, and whose vendee, without notice and for a valuable consideration paid, will take the title discharged of the lien or claim of the original vendor.

This legal title can only be attacked by the lien holder by showing that the subsequent purchaser had notice or was charged therewith at his purchase, or had not paid a valuable consideration.

There is no claim that Rice, in this case, had notice.

It is in evidence that Rice gave for the land the consideration, whatever it be, of crediting upon the account of Wm. M. Rice & Co. against his vendor, Ward, to the amount of §2 per acre of the tract. This, it is insisted by appellee, and it was so held in the court below, was not a valuable consideration paid, such as to support the defense of Iona fide purchaser; or, rather, that upon such fact appearing, the land in Rice’s possession became subject to the vendor’s lien.

In Spurlock v. Sullivan, 36 Tex., 516, 517, the supreme court, Ogden, J., delivering the opinion, held that such antecedent indebtedness was not a sufficient consideration. In the opinion, as authority, with several other citations, is given from Willard’s Eq. Jur., p. 256, the following citation: “ The rule with regard to purchasers of realty is the same as that in respect to indorsees of negotiable or commercial paper. It is not enough to shut out the equities of prior parties to a note that the holder received it in good faith and before maturity, unless he paid value, or parted with a consideration upon the faith of the paper. If he receives it on account of previous indebtedness, although upon a valid consideration between the parties, he is in no worse condition with respect to such previous indebtedness than before.”

In Greneaux v. Wheeler, 6 Tex., 528, our court, Hemphill, O. J., delivering the opinion, following the authority of Swift v. Tyson, 16 Pet., 1, it had been held (at the time of the opinion in Spurlock v. Sullivan), “ that from the current of authorities such consideration (a pre-existing indebtedness) is valuable; and that a note is taken in the bona fide course of trade when transferred on such consideration.”

In the recent and elaborate opinion of Moore, O. J., in Blum v. Loggins, delivered March 19, 1880, at Galveston, the doctrine as stated in Greneaux v. Wheeler is approved, the court holding: “When a negotiable instrument is transferred before due and without notice in such a manner as to pass the legal title, whether this is done in payment of a present or pre-existing debt of the assignor, the holder is no doubt protected against defenses which would be available against the original payee.”

Thus it appears that so much of the extract relied upon in Spurlock v. Sullivan as relates to holders of negotiable notes taken for antecedent indebtedness is not authority. Indeed, the rule, as in Greneaux v. Wheeler was recognized by Justice Ogden in Planters’ Bank v. Evans, 36 Tex., 595.

In the recent case of Alstin v. Cundiff, 52 Tex., 464 (Op. January 30, 1880), in which a secret equity was asserted against the legal title, the holder having paid therefor by the release and satisfaction of an old debt, the modified rule as to holders of negotiable notes for value was applied to the purchaser bona fide of real estate without notice so as to protect against the trust. Bonner, J., delivering the opinion, after citing from Greneaux v. Wheeler and Swift v. Tyson, announces the doctrine, “ although there can be found many decisions against the application of this doctrine to the purchase of real estate, yet we cannot see why> upon principle, it should not be thus applied, particularly in cases where thie original indebtedness is given up and canceled. And it is thus decided in courts of high authority.” Citing Love v. Taylor, 26 Miss., 574; Padgitt v. Lawrence, 10 Paige Ch., 180; Work v. Brayton, 5 Ind., 397; Babcock v. Jordan, 24 Ind., 19.

Much importance is attached in some decisions to the surrender of the security, or evidence of indebtedness, as a compliance with the rule requiring that something be parted with by the vendee at his purchase; that his situation be changed.

This distinction does not seem called for in the late cases as necessary to the decisions.

The old rule gives to what is the mere evidence of indebtedness a greater importance than to the fact of the indebtedness. The obligation in law and in morals is as great to pay a book account as to pay a debt evidenced by a note or bond. Yet in- surrendering an account on its payment, no evidence or security would be parted with as when a note is given up.

It is difficult to see why a given number of dollars of indebtedness satisfied on the payment of a debt evidenced in one way would have a greater purchasing power than when applied to a debt evidenced in another mode.

Why should additional sanctity be added to the transaction if the creditor obtain from his debtor a negotiable note for the exact part of the past indebtedness to be liquidated in the land trade and surrender the note so obtained as a consideration ?

A receipt given for part payment of an account as evidence is, at least, more easily used, if it be not a higher grade of evidence than that had by the creditor for the debt; and, if the apparent reason of the distinction be followed, such payment upon an account would be a valuable consideration. But why so, rather than a payment upon a note? It is the satisfaction of the indebtedness, in whole or in part, which is the consideration. It would seem, therefore, as between parties in their own dealings, that a credit upon a debt ought to signify value equally as a surrender of the evidence. It is otherwise in judicial sales.

Besides, in this case, Bice, the purchaser, did more than credit the amount of the purchase money upon an antecedent indebtedness due to himself. His purchase was made and the land paid for by crediting; that is, satisfying jpro tanto the account of Wm. M. Bice & Co: against Ward.

[Opinion delivered November 1, 1880.]

On taking the land, Bice became chargeable (it seems the land was bought by Bice and not by the firm) to Wm. kL Bice & Co. with the amount of the purchase. A cancellation of the trade between Bice and Ward would not restore Bice’s account with the firm of Wm. M. Bice & Co. to its condition before the purchase. It might cast upon him that part of the account. The proportion of the sum credited upon the account owned by the others of the firm would be a consideration satisfied by the trade. This would be valuable— something paid out or lost in the trade not restored on its rescission. Johnson v. Newman, 43 Tex., 642.

Following the authority of Alstin v. Cundiff, and for other reasons given herein, we consider that the court erred in holding that Bice’s purchase was not for a valuable consideration paid. Upon the facts, the judgment should have been for the defendant.

.For this error the judgment should be reversed.

Beversed and remanded.