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    Wm. R. Baker et als. v. Recardo De Zavalla et als.
    (Case No. 3973.)
    1. Deed — Administrator’s sale.—Lorenzo De Zavalla died in Harrisburg county, November 16, 1836. His son took out letters of administration on his estate January 30, 1838, and returned an inventory of property valued at §15,000. Administration was kept open from year to year, and in 1841 partition of the estate was ordered. At the July term, 1841, of the probate court, the commissioners appointed to make partition reported a division of the land among the heirs, except one labor, which they represented indivisible. It was ordered sold; report of sale was made September 28, 1841, and approved. January 2, 1843, Henry M. Fook, who had married Zavalla’s widow, applied for letters of administration de bonis non on Zavalla’s estate, alleging that the administrator had “ departed from the republic, and has been absent from the republic for more than twelve months, and that the estate is suffering from neglect.” February 27,1843, after due publication, the former letters of administration were revoked, and Henry M. Fook was appointed, administrator de bonis non with bond fixed at $17,000. Fock continued to act as administrator until his death in 1850. March 12, 1850, W. B. Baker filed a petition in the probate court showing “ that Lorenzo De Zavalla died several years since, a citizen of this county: that his estate has been administered and the property sold, except the headright of the deceased, and he is informed that all debts have been paid, except one due your petitioner and officers of court for expenses of administration; . . . that the administrator of said estate, II. M. Fock, has lately died, leaving your petitioner’s debt unpaid; that it is the wish of the widow of said deceased that said debt should be paid, and that for the purpose an administrator should be appointed.” The petition was sworn to by Baker, clerk, before Augustus C. Daws, his deputy, March 13, 1850. March 15, 1850, Baker gave notice of his application, and at the March term, 1850, of the probate court, letters issued to Daws. April 1,1850, Daws returned an inventory, including only the league and labor headright certificate granted to L. De Zavalla by the board of land commissioners of Harrisburg county, appraised at $250. Inventory approved. Daws gave $500 bond, with Baker and T. M. Bagley sureties, which was approved April 29, 1850. April 30, 1850, Daws made application for order of sale to sell the certificate, for cause showing that there was “ due and owing the officers of Harris county court, by the estate of L. De Zavalla, under former administrators, upwards of $100 for costs of court, and that there are and will be costs due in addition thereto by virtue of the administration of petitioner; that there are no other debts to his knowledge, and that the headright for one league and labor of land of the deceased is all the property belonging to the estate, out of which the aforesaid debts can be made. He therefore prays that he be authorized to sell said land certificate, together with all the right of location which may have been acquired, for cash.” Sworn to by Daws before W. B. Baker, clerk, April 29, 1850. April term, 1850, ordered that Daws proceed to sell on first Tuesday in June, 1850, at the court-house door in Harris county, for cash, to the highest bidder, after giving twenty days’ notice, “one league and labor land certificate, granted to Lorenzo Zavalla by the board of land commissioners of Harrisburg county, together with all the right of location which may have been acquired by virtue thereof.” June 4,1850, return pf sale by Daws, sworn to before W. B. Baker, clerk; sale to Baker for $195 cash. June term, 1850, sale approved, and deed to purchaser ordered for the certificate, “ together with the land upon which the same may be situated.” Daws executed deed to Baker in accordance with the order approving the sale. In a suit by the heirs of Zavalla for the land covered by the certificate, held:

    (1) Baker’s title to the land depends upon the validity of the grant of administration under which the sale was made at which he bought, and the validity of the administration depends upon the facts as they existed at the time the letters .were granted. Withers v. Patterson, 27 Tex., 501.

    (2) Given an administration legal in its inception, it becomes immaterial to its validity whether it was wisely executed.
    (3) That property was lost or squandered in the course of the administration is a ground for complaint against the administrator in the probate court, or in a direct proceeding for the revision of such errors.
    (4) That an administration was not formally extended did not effect its validity. Poor v. Boyce, 12 Tex., 447.
    (5) Nor that so long a time elapsed between the death of the intestate and the grant of letters de bonis non. Howard v. Bennett, 13 Tex., 314.
    (6) Nor that there was an interval of several years between entries or evidence of acts as such. Burdett v. Silsbee, 15 Tex., 610-616.
    (7) Nor that an estate was consumed by costs and expenses to the loss or want of benefit to the heirs. Kleinecke v. Woodward, 42 Tex., 311.
    (8) Nor was the sale under which Baker purchased ineffectual to pass the location with the certificate. Simpson v, Chapman, 45 Tex., 566.
    (9) That limitation would run against an effort to avoid the sale for fraud, if fraudulent acts can be shown or appear. Pearson v. Burditt, 26 Tex., 172.
    "(10) That Daws’ administration, under which Baker purchased, was valid; that the objections to the proceedings antecedent to, and in the sale and its confirmation, were but irregularities, only available in a direct attack, and not to be avoided in a collateral proceeding.
    Appeal from Lamar. Tried below before the Hon. R R. Gaines.
    Becardo Be Zavalla, Emily Hand, Augustine Zavalla, Catharine A. Hutchison, W. E. Hutchison, Lorenzo Be Zavalla, Jr., Gertrud^, Lenoria, Lorenzo Lenorio and Ignacio Lenorio, as heirs of Lorenzo Be Zavalla, sued in trespass to try title, petition being in the usual form, Wm. B. Baker and others, in the district court of Lamar county, for twenty labors of land in said county, patented to the heirs of said Lorenzo Be Zavalla. Petition was filed April 28, 1877.
    October 3, 1877, defendants answered not guilty. Becord and Edwards pleaded, in addition, that in 1876 they had each bought a part of said tract — bought in good faith, without notice of plaintiffs’claim; suggested valuable improvements, etc.
    By amended answer, defendants pleaded that the claim of plaintiffs was a stale demand, based upon rights accruing more than ten years before the suit was filed; that defendant Baker, and those of defendants claiming under him, have owned and held adversely, paying taxes thereon, ever since the year 1850.
    On the trial it was admitted that the plaintiffs were the widow and heirs of Lorenzo De Zavalla, deceased. Patent was received of date October 12, 1862, to the heirs of L. De I! Zavalla, fpr the land described in the petition.
    It was admitted that defendants, Record and Edwards, were in actual possession of portions of the land, and that the other defendants are claiming the balance of the tract.
    Upon this the plaintiffs rested.
    The defendants read transcript of proceedings had in the probate court of Harris county, in the administration of- L. De Zavalla, showing—
    Petition of Lorenzo De Zavalla for letters of administration, of date January 17, 1838, alleging that his father, L.' De Zavalla, died November 16, 1836, in the county of Harrisburg, intestate, leaving property and unfinished business, etc.
    January 30, 1838, letters were granted, fixing the bond at $25,000.
    February 1, 1838, the administrator, with appraisers Geo. M. Patrick and David G. Burnett, returned an inventory, reporting lands, the headright certificate for league and labor, personal property, claims against M. B. Lorrior and sundry other individuals; claims against the government for military services as delegate to the consultation, and to the convention at Washington, etc. Total valuation of estate, $15,000.
    February, 1839, the administrator filed his account current, showing his acts to that date; reporting collection of $3,332.50, and disbursements to the amount of $487.11, in-eluding $19 paid “bill of the clerk of the probate court;” and “February 6, fees on one order of survey for one league and labor, of land for estate (B), $5; ” and “ October 24, 1838, paid M. Trimble, county surveyor of Bexar, in advance, for locating and surveying a league and labor of land for estate (I), $70.”
    On request of the administrator his administration was extended a further time of twelve months and the account was allowed.
    April 27, 1840, the administrator filed his second annual exhibit, showing items of expense and moneys collected:
    Reporting collections...................................... $4,992 50
    Disbursements........................................... 2,746 49
    Balance carried to new account.......... $2,246 01
    This account was also approved and time of administration extended to the January term, 1841.
    At the March term, 1841, the administrator petitioned the court for the sale of the personal property remaining in his hands, as incapable of partition, and the same was ordered “ on the terms and conditions prescribed by law.”
    To the April term, 1841, Henry M. Fock and wife, Emily (the latter “late widow, of L. De Zavalla”), filed a petition for the partition • of said estate, representing that all the debts of said estate were paid and that one-half of the property now vested in her. She asked citation to other heirs and the administrator, and the administrator accepted service of the petition. At the same term (April, 1841) the administrator also filed a petition for partition of the lands of the estate.
    On these petitions the court ordered a partition of the lands of the estate, and appointed commissioners to divide them; the parties taking in the partition being Mrs. Emily Fock, widow, and Mrs. Manuella Zonerio, Emily, Lorenzo, Augustine and Becardo De Zavalla, children of the deceased, of whom Augustine, Emily and Becardo were minors.
    On May 31, 1841, time was extended for the report of the commissioners of partition.

      At the July terra, 1841, the commissioners reported division of the lands, except one labor, which they represented indivisible. The court at that time approved the report of division, and ordered the labor, reported indivisible, sold “upon a credit of twelve months, as prescribed by the statute.”
    At the September term, 1841, the administrator reported the sale of the personal property and the labor of land as follows:
    “Accouet Sales.
    “September Term, 1841.
    “Beport of sales of property, real and personal, belonging to the estate of L. De Zavalla, deceased. Sold by order of the honorable the probate court of Harris county, republic of Texas:
    Mrs. M. H. Fock, thirteen head cattle, §6.60................ §81 50
    Mrs.- M. H. Fock, one M. bedstead and bedding.............. 75 00
    Mrs. M. H. Fock, one gray horse............................ 33 00
    §181 50
    Mr. H. Fock, one labor of land at the junction of Buffalo Bayou and old San Jacinto river, he and his wife’s right being interested to the extent of one moiety, and the same
    not capable of division, for the whole labor............... 3,832 00
    Bobert Dunman, one negro slave named Tom............... OSO 00
    McLemore, one-half dozen knives and forks............... 4 00
    Total.................................................. §3,907 50
    “ Houston, September 28, 1841.”
    This was sworn to, and at September term, 1841, was examined, approved and ordered to be recorded.
    August term, 1842, continued. January 2, 1843, petition was tiled of Henry Id. Fock and his wife Emily (widow of L. De Zavalla), for letters de bonis non, alleging that Lorenzo De Zavalla, the administrator, had “ departed from the republic and has been absent from the republic for more than twelve months, and that the estate is suffering from neglect,” asking that letters to L. De Zavalla be revoked and full “ authority to settle said succession.”
    The court ordered publication of notice to the former administrator of the application for his removal. Hot ice was published for twenty days in the Telegraph, a newspaper in Houston, February 27, 1843. It was “ ordered that the letters issued to L. De Zavalla be revoked, and that letters issue to Henry M. Fock, upon his entering into bond with approved security in the sum of $17,000, or in double the amount of the inventory according to the terms of the law, upon payment of all costs.”
    October 17, 1843, petition of DeW. 0. Harris, county clerk, filed, representing that “ the estate of L. De Zavalla has been opened for several years, and the fees of office balance remains unpaid; that L. De Zavalla has been discharged, and H. M. Fock appointed in his place,” etc., asking a rule, etc.
    Same day, 17th October, 1843, indorsed: “Let a writ of citation issue returnable to October term.”
    Citation was issued and returned indorsed “ with a receipt from D. W. Clinton Harris for a settlement of all his costs.”
    October term, 1843. “ Continued at the cost of H. M. Fock, the defendant.”
    January term, 1844. “ Continued by order of court and consent of parties to next term.”
    February 26, 1844. Fock filed his bond as administrator de Jjonis non in sum of $2,000. Approved.
    February term, 1844. It was further “ ordered that Fock file an inventory duly appraised by J. T. Harrell, Silas Herndon and Joseph Oates under oath, and make due return at the next term.” It does not appear that an inventory was ever filed by Fock. •
    March term, 1844. “ Continued by order of court to next term upon motion of the administrator, and he, the administrator, having heretofore taken the usual oath of office as such, it is ordered that H. M. Fock, the administrator, have until next term to file an inventory, and that letters of administration may issue forthwith the better to enable him to give a correct inventory.”
    April term, 1844. Continued by order of court to next term of court.

      May term, 1844. Same order.
    July term, 1844. Same order.
    August term, 1844. “ By consent of parties interested, this estate is dismissed from the docket until called up by parties in interest.”
    January 21, 1848. The petition of Henry M. Fock, administrator, -represented “ that the rents, issues and profits of said estate are insufficient for the support of the family and education of the minor children of said deceased,” praying “the sale'of the headright certificate.of said deceased for one league and labor of land issued to the heirs of deceased by the board of land commissioners of Harrisburg county.”
    March term, 1848. “Ordered by the court that the administrator sell the headright certificate of deceased in terms of the law for cash, with appraisement, and due return make of such sale on or before the next term.”
    May term, 1848. Continued for return account sales.
    July term, 1848. Same order.
    August term, 1848. Same order, and “ citation ordered to Galveston county.”
    September term, 1848. Continued for account sales.
    November term, 1848. Continued for return account sales:
    December term, 1848. Continued for account sales.
    January term, 1849. “ Ordered that the clerk issue a summons to H. M. Fock, administrator, requiring him to file an account sales of the property of said estate at the next term,” etc.
    Citation issued 3d February, to Harris county, returned not executed for want of time.
    Also, January term, 1849. “It appearing to the court on examination of the records of the county court in this matter of this estate, that the costs accruing to the officers of court arectue and unpaid; and on motion of Wm. F. Weeks,formerly probate judge for Harris county, by his counsel: It is considered, ordered, adjudged and decreed that the administrator of this estate be cited to appear on or before the Feb-, ruary term, 1849, of this court, and show cause, if any, why judgment should not be rendered against him and his sureties on his bond for the full amount of all costs due to the officers of court in the matter of the succession, and execution awarded therefor.” Citation ordered returnable to next term.
    Citation issued February 6, 1849; returned February .26, 1849, not executed for want of time.
    February term, 1849. Alias summons ordered requiring Fock to file an account sales of property, etc.
    < Alias issued, and returned served March 22, 1849.
    March term, 1849. Continued.
    April term, 1849. Continued.
    October term, 1849. “ On motion, it is ordered by the court that the case be placed upon the docket, and further ordered that the business of the estate be continued until next term.”
    November term, 1849. Continued.
    January term, 1850. Continued.
    February term, 1850. Continued.
    March 12, 1850, Wm. R. Baker filed a petition showing:
    “That Lorenzo De Zavalla died several years since, a citizen of this county; that his estate has been administered, all the property sold except the headright of the deceased; and he is informed that all debts have been paid except one due your petitioner and officers of court for expenses of administration ; . . . that the administrator of said estate, II. M. Fock, has lately died, leaving your petitioner’s debt unpaid; that it is the wish of the widow of said deceased that said debt should be paid, and that for the purpose an administrator should be appointed; asking that Augustus C. Daws or any other suitable person be appointed administrator of said estate for the purpose aforesaid.”
    This was sworn to by Baker, clerk, before his deputy, August C. Daws, 13th March, 1850.
    March 15th notice was given by Baker of his application.
    March term, 1850, letters ordered to Daws; appraisers appointed.

      April 1,1850, Daws returned an inventory, including only the league and labor land certificate of headright, granted to L. De Zavalla by the board of land commissioners of Harrisburg county, appraised at §250. Inventory approved. Bond filed by Daws in sum of §500, with Baker and T. M. Bagby sureties, approved 29th April, 1850.
    April 30, 1850, Daws made application for sale of the headright certificate; for cause showing that there is “due and owing to the officers of Harris county court by the estate of L. De Zavalla, under former administrators, upwards of §100 for costs of court; that there are and will be costs due in addition thereto by virtue of the administration of petitioner; that there are no other debts to his knowledge, and that the headright for one league and labor of land of the deceased is all the property belonging to the estate out of which the aforesaid debts can be made. He therefore prays that he be authorized to sell the said land certificate, together with all right of location which may have been acquired, for cash,” etc.
    Sworn to by Daws before W. E. Baker, clerk, April 29, 1850.
    April term, 1850. Ordered that Dows proceed to sell, on the first Tuesday of June, 1850, at the court-house door, in Harris county, for cash, to the highest bidder, after giving twenty days’ notice, “ one league and labor land certificate, granted to Lorenzo De Zavalla by the board of land commissioners of Harrisburg county, together with all the right of location which may have been acquired by virtue thereof,” etc.
    June 4, 1850. Eeturn of sale by Daws, sworn to before Baker, clerk. Sale to Baker for §195, for cash.
    June term, 1850. Sale approved, deed to purchaser ordered for the certificate, “ together with the land upon which the same may be located.”
    July term, 1850. Continued.
    August term- Daws filed final account and resignation account as follows:

      Estate of L. De Zavalla, "deceased, with A. O. Daws, administrator.

      Dr.

    To amount court fees paid as clerk’s receipts.................. §178 09
    To commission on §195. Receiving and paying out ten per cent........................................................ §19 50
    §197 50 Cr.

    By amount received for cash for league and labor of land
    granted to De Zavalla and sold by me...................... §195 00
    Due A. O. Daws, administrator............................... 2 50
    August term, 1850, Daws’ final account was approved and his resignation accepted, his bond as administrator canceled and the estate closed.
    It was admitted that Daws executed to defendant Baker a deed for the said land certificate by virtue of which the land in controversy had been located, as ordered, in 1852.
    Admitted that ¡November 8, 1873, Baker sold one hundred and fifteen acres to E. L. Dohoney.
    In 1875, sold, and June 16, 1877, deeded, two hundred acres to defendant ¡Record.
    Sold to Edwards-acres.
    To Skinner & Fitzgerald, one hundred and twenty-five acres.
    Record and Edwards proved value of improvements and rents, etc.
    In rebuttal plaintiffs showed that the land in controversy was surveyed March 6, 1849, by virtue of the headright certificate of L. De Zavalla; the same certificate sold Baker June 4, 1852, and on which patent issued October 12,1852.
    Plaintiffs themselves offered the record of proceedings in the probate court in evidence to show that Daws’ administration was a nullity; and that, at the time of the sale, the certificate was not in his hands, but had been located.
    Judgment was rendered for plaintiffs.
    Allowance for improvements were made to Record and Edwards, and the statutory judgment entered for their protection. The judgment recites no facts as having been found by the court.

      The defendants appealed, assigning as errors:
    1. The court erred in its final judgment as to the law.
    2. In holding that a land certificate can become realty before a patent issues on it.
    3. In holding that upon the location and survey of a land certificate, it becomes merged in the land before a patent issues thereon.
    4. In holding that the sale of the headright certificate of L. De 'Zavalla, and of any land located by virtue thereof in June, 1852, by A. C. Daws, administrator, did not pass the title of the land sued for to Baker, the purchaser.
    5. In holding that the sale of the land certificate after its location and survey and before any patent had issued thereon, for cash, was a void sale.
    6. In deciding that appellant Baker took no.title, legal or equitable, under the sale of the certificate aforesaid, and any land located by virtue of it under the orders-of the probate court.
    7. In sustaining the administration, and yet taking the land from appellants without requiring appellees to refund the purchase money and interest, paid to the administrator.
    8. In not sustaining appellants’ plea of stale demand.

      E. L. Eohoney, for appellants.

      Hutcheson dé Carrington, for appellees.
   A. S. Walker, J.

The right of appellants to the land depends upon the validity of the grant of administration under which the sale was made at which Baker purchased.

The validity of the administration “depends upon the facts as they existed at the time the letters were granted.” Withers v. Patterson, 27 Tex., 501.

These facts can be ascertained from the record, supported by all presumptions which are indulged in support of the act as a judgment of a court of general jurisdiction. In other words, if jurisdiction is hot negatived by the record it cannot be attacked in a collateral proceeding. This rule is stated in Guilford v. Love, 49 Tex., 741, by the late chief justice of the supreme court. The paragraph on the subject is as follows:

“Justice Bell, in discussing the question of what may be presumed in favor of the action of county courts, as exhibited in their orders or judgments, in the case of Withers v. Patterson, says: ‘The question presented in such cases is, how far is proof (which is wanting) to be supplied by presumption? The circumstances which would have authorized the court to act as it did 'act (within the limits of its jurisdiction being implied) are presumed to have existed.’ ‘But presumptions are indulged in the absence of proof and not against proof.’ 27 Tex., 496 (citing authorities). . . . In Freeman on Judgments, sec. 132, on Silence of Record, he says (quoting from 35 Cal., 460): “It is of no consequence whether the jurisdiction of the court affirmatively appears or not on the judgment roll; for if it does not, it will be conclusively presumed ’ (citing authorities).”

Taking this as a guide, let it be applied to the record. The statement given in connection with this opinion gives a full digest of the proceedings in the probate court to be examined.

The administration granted in 1838 upon the estate of Lorenzo De Zavalla, who died in 1836, to his son Lorenzo, was, beyond question, valid.

This original administration was extended by express order twice. The last order of extension was until January, 1841.

In 1841 a partition of lands of the estate was made, regular in all respects. In the partition proceedings a city lot in Galveston-and a labor of land on which the family resided in the junction of Buffalo Bayou and the San Jacinto river were reported as unsusceptible of partition. Certain personal property also was shown to the court to be Unsusceptible of division, and to be of a perishable nature. Orders of sale were made for sale of the lands on twelve months’ credit, as required by law. bio terms of sale were fixed in the order for the sale of the personal property.

All the property ordered to be sold except the Galveston lot was reported as sold by the administrator to the September term, 1841." The aggregate amount of the sales was $3,997.50.

The report, there being but one, did not show the terms of sale. Under the law the land would be on twelve months’ credit.

It would have been within the power of the administrator, after making these sales for partition, to have divided the money realized among the distributees — one-half to the widow and one-tenth to each of his brothers and sisters, as the lands were to be divided. It would also be the duty of the probate court, in event of his failure to do so, to enforce a disbursement of these funds. The proceeds of sale added to the money reported on hand, $3,997.50+ $2,246.01= $6,243.51.

What became of this money is not disclosed. It is evident that the probate court had not relieved the administrator from his trust before his removal. On the minutes of the court, at its August term, 1842, about the time the sale notes would mature, is an entry, “ Continued,” applied to the administration. This may have been intended as an extension of time. At least it did not negative such extension.

January 2, 1843, application was made to the court by Fock, husband of the widow of the deceased, herself entitled to one-half interest in the estate, showing that the administrator had left the republic, and “ had been absent from the republic for more than twelve months,” “ and that the estate is suffering from neglect,” asking the removal of the former administrator and his own appointment as administrator de honis non.

This application was entertained. Citation against the administrator was published, and he was removed. At the same time Fock was appointed to the administration. This appointment was made February 27,1843. It does not appear from the record or otherwise that, at this time, any of the estate had gone into possession of the heirs except the land partitioned (which -was one and a half leagues on right bank of San Jacinto, in Harris county).

There was, so far as the records of the administration showed, the Galveston city lot (ordered to be sold), the headright league and labor certificate unlocated, though an advance of $70 appears to have been paid a surveyor to secure its location, the money reported, and the sale notes or proceeds therefrom.

These subjects, or some of them, may have needed attention; some may have been suffering from neglect; the salé notes may have remained uncollected. The court, upon such showing, confided administration. It cannot be said that there was nothing to administer; that the money had been collected and paid to the administrator; or that the remaining property had in fact passed into the hands of the heirs.

Having an unsettled estate suffering from neglect, the court had jurisdiction and exercised it.

We concluded, therefore, that Dock’s appointment was valid.

If Dock’s appointment was valid, his administration would be a continuation of the control of the estate by the court. IBs trust character would continue until lost by the action in some way exercised of the court, or by his non-action as such, for so long a time, or under such circumstances, that the court would refuse or lose its power to control his acts.

It would exist so long as the court should recognize him as such, and while those interested in the estate would allow it. It was not necessary that his term of administration be expressly extended, there being no law so requiring it as a condition of the legality of his acts. While recognized as such by the court, and he remained in charge of the property, he would be in law and in fact the administrator.

The record is meager and at times obscure as to the acts of Dock in his administration. He was tardy in executing the bond, but it was executed and it was approved by the court.

October, 1843, a complaint was exhibited against him by the county clerk representing “that the estate of L. De Za,valla has been open for several years, and of the fees of office a balance remains unpaid,” etc. "Upon this a citation was issued.,, The rule against him appears to have been discharged upon his payment of all the clerk’s costs. •

In an entry made at the March term, 1844, it appears that Fock had taken the statutory oath, and that letters had in fact issued. Appraisers were appointed. Ho in\Tentory, however, appears in the record. Tet there is no order taken against him for not filing it. Action in the court upon the estate appears to have been continued from term to term, with rare exceptions, until August, 1844, when an entry is made, By consent of parties this estate is dismissed from the docket until called up by parties in interest.” This was not a dismissal of Fock, nor did it relieve from his trust. Its effect may .have been to relieve the call of the estate from month to month for orders. Its terms negatived a removal, in the.provision that it could be replaced upon the docket for orders in course of further administration when necessary.

January 21, 1848, Fock applied for an order to sell the headright league and labor certificate, issued to the heirs for the support and education of the minors. At the March term thereafter, an order was made for its sale. Such sale was proper tinder probate act of 1846, art. 18, then in force. Continuances for account of sales were regularly entered until the January term, 1849, when citation was ordered requiring the return of such account. At the same term an order appears reciting that the records of the court “ in the matter of this estate showed that the costs accruing to the officers of court are due and unpaid.” Citation was ordered. Alias citations were returned served upon him March, 1849. This rule for costs never appears to have had final action.

At the October term, 1849, the record discloses, “ On motion it is ordered by the court that the case be placed upon the docket; and further ordered that the business of the estate be continued until next term.” Continuances were entered for the three succeeding terms, December, 1849, January and February, 1850. March 12, 1850, Baker, the county clerk, filed his petition representing “ that the estate has been administered, all the property sold except the head-right of the deceased, and he is informed that all debts have been paid except one due your petitioner and officers of court for expenses of administration; . . . that the administrator of the estate, Fock, has lately died leaving petitioners debt unpaid; that it is the wish of the widow of the deceased that said debt should be paid, and that for this purpose an administrator be appointed,” asking Daws’ appointment.

Under the probate act of'1840, art. 21 of act, costs of court are recognized as debts to be paid out of the estate next after expenses of last sickness. So in the act of 1848, art. 78. They were charges under the act of 1846, art. 24. Costs being chargeable to the estate were certainly debts to be paid; in this instance only out of the unadministered assets.

At Fock’s death an order was pending against him to compel payment of costs. Early in his administration he had discharged a rule by paying the costs of the officer who wTas pressing it. The record, therefore, does not negative the existence of costs unpaid. There was in his hands, not sold nor passed from his possession to the heirs, the head-right certificate.- Debts and assets unadministered. So it appeared in the record. These facts were alleged in Baker’s application; being verified by the record, the right existed to continue the administration. If existing at Fock’s death, an equal right to its continuance remained in the probate court.

Again as to debts, besides the statutes cited, the administrator under our probate laws is a trustee for the heirs, etc.; his agency is upon the assets. His acts may impose charges for expenses or costs upon the property. Portis v. Cole, 11 Tex., 158. And the record showing costs existing, their non-existence or payment cannot be presumed, as was done in Duncan v. Veal, 49 Tex., 603. In such a case, and where it appeared “that the estate had not been fully settled and distributed among the parties entitled thereto” (Frost v. Frost, 45 Tex., 342), the court held, “ whether it was absolutely essential that further administration should be had upon it, or whether it was for the interest of the heirs or creditors that the administration should be longer continued, certainly it cannot be said that it was not within the power and jurisdiction of the .court to grant letters de bonis non.to complete its full and final settlement.”

Given an administration legal in its inception, .it becomes immaterial to its validity whether it was wisely exercised.

That property was lost or squandered in the course of the administration is a ground of complaint against the administrator in the probate court, or in direct proceedings for the revision of such errors.

That an administration was not.formally extended did not affect its existence. Poor v. Boyce, 12 Tex., 449.

.Mor that so long a time elapsed between the death of the intestate and the grant of letters ds bonis non. Howard v. Bennett, 13 Tex., 314, 315.

Mor that there was an interval.-of several years between entries, .or evidence of acts as such. Burdett v. Silsbee, 15 Tex., 610, 616.

Mor that an estate was consumed by .costs and expenses, to the loss or want of benefit to the heirs. Kleinecke v. Woodward, 42 Tex., 311.

Mor is it believed that the sale under which Baker purchased was ineffectual.to pass the location with the certificate. Simpson v. Chapman, 45 Tex., 566.

Limitation would run against an effort to avoid the sale for fraud, if fraudulent acts appear or can be shown. The plea of stale demand was rightly interposed against the attack for fraud. Kleinecke v. Woodward, 42 Tex., 311; Pearson v. Burditt, 26 Tex., 172.

It is our opinion, therefore, that Daws’ administration, under which Baker purchased, was valid; that the objections to the proceedings antecedent to and in the sale and its confirmation were but irregularities, only available in a direct attack, not to be available in the collateral; and that, as to any real or alleged fraud, even if it could be heard on a plea of not guilty in an action of trespass to try title, the lapse of time is so great that its availability as a defense is lost.

[Opinion delivered November 8, 1880.]

We, of course, are acting upon the record before us. Whatever the future researches in the records of the probate court may divulge, if anything, to exclude the court on the trial from according to the orders and decrees of the probate court the presumptions of regularity required in the absence of a negative on record, may be shown on the new trial consequent upon the reversal.

This opinion only decides that, as shown in the record, the jurisdiction of the court is not negatived as to the appointment of Daws; that the irregularities complained of, interposed at the time and in the manner urged below, do not vitiate the sale; and that the sale, if valid, passed also the location.

There was error in the judgment for plaintiffs, and for that the judgment should be reversed.

Reversed and remanded.


source: Caselaw Access Project

author: Quinan, J.

license: Public Domain

text:
    J. T. Swearingen Garnishee, v. Wm. Hendley & Co.

    (Case No. 3730.)
    1. Statute of frauds — Assignment for benefit of creditors.— A debtor, though in failing circumstances, has the right, in making an assignment of his property for the benefit of his creditors, to prefer creditors, if done bona fide; and if the purpose is to pay honest debts, either by a general distribution, or by expressing a preference among his creditors, it will be valid. Baldwin v. Peet, 33 Tex., 717.
    3. Same.—Reserving trifling amounts by a debtor in making an assignment is no indication of fraud, and that most of the claims assigned are worthless is no objection to the assignment, when it appears they were all he had.

      3. No acceptance by creditors necessary.—Where the deed imposes no terms upon the creditors, the law presumes the acceptance by the creditors of an assignment for their benefit. S3 Tex., 70S.
    4. Same — Limitation.— A debtor is not bound to plead the statute of limitation, and it is no objection to a deed of assignment that a debt barred by limitation is included in the list of his liabilities, or that some of his debts were due his kinsman.
    5. Individual debts.— The individual debts of a debtor making an assignment, have no preference over those owing by him as a member of a partnership. Higgins v. Rector, 47 Tex., 861.
    6. Setting aside deed oe assignment.— It is error to set aside a deed of assignment and still require the assignee to administer the debtor’s estate for the benefit of the creditor attacking the assignment. ■
    7. New trial.— A defendant will not be given a new trial to make parties, where he has failed to ask that relief, or make any objection on that ground until after the cause has been tried.
    Appeal from Washington. Tried below before the Hod. E. B. Turner.
    Hendiey & Co. brought suit against P. M. Daniel' in the district court of Washington, on 23d October, 1876, on an account due them, and one due Cannon & Williams, assigned to them.
    On 23d ¡November 1876, a writ of garnishment was sued out against J. T. Swearingen.
    Judgment by default was rendered in favor of Hendiey & Co. against Daniel for $1,802.64, 4th August, 1877.
    On 6th January, 1877, Swearingen, answered the writ of garnishment, stating that on the 10th August, 1876, the defendant Daniel executed to him a deed of assignment of his notes, accounts and other effects, with authority to collect the same, and, after paying all reasonable and proper charges, to pay Daniel’s creditors the full amount due them, and in case the proceeds were insufficient to pay the debts in full, then to pay the creditors pro rata, in proportion to the .amount due each. The deed of assignment, together with a list of the debts due Daniel, amounting to the sum of $6,008.26, and of the names of his creditors, with the amount due each, including the claims upon which this suit was brought, amounting in the aggregate to $10,809.96, was attached to his'answer.

      It was further alleged in Swearingen’s answer that the assignment was made in good faith, included all of the assets belonging to Daniel, and gave a correct list of his liabilities, and that he had accepted the same and undertook its obligations in good faith. At the date of his answer, he had collected 81,572.62, which he was ready to distribute in accordance with the terms of the deed of assignment.
    On 20th January, 1877, Hendley & Oo. filed an affidavit controverting the truth of Swearingen’s answer, and charging that this assignment was made with intent to hinder and delay and defeat creditors, and is, therefore, null and void. It is specially charged:
    1. That at the time of making this assignment, Daniel was notoriously insolvent.
    2. That on 29th July, 1876, Daniel, then a retail merchant in Brenham, sold his stock of goods to Hodde & Werner, secretly, for an inadequate consideration, to prevent creditors from attaching them.
    3. That he has secreted the proceeds of the sale and reserved it for his private use.
    4. That he preferred creditors, paying Basset & Basset fraudulently.
    5. That Swearingen was Daniel’s attorney, and that the assignment was made to him and accepted by him, knowing its fraudulent character, and aiding and abetting Daniel in the same.
    6. That the assignment has never been accepted by the pretended beneficiaries.
    7. That half the notes and claims recited in the schedule as transferred to Swearingen were fictitious, barred by limitation, and uncollectible.
    8. That he reserved his most valuable claims for his private use.
    9. That the schedule of his creditors is false. That at least half of the claims enumerated are not valid debts. That some of them are debts due by Daniel as a member of the partnership, and not to be classed with his individual debts.

      10. That Daniel had not delivered his books and papers to the assignee.
    To these allegations the garnishee replied, denying them so far as inconsistent with his answer, etc.
    The case was submitted to the judge, who rendered judgment against the garnishee in favor of Hendley & Go. for the money in his hands, declaring the assignment null and void, and enjoining Swearingen from transferring the notes and effects in his hands, but that he hold the same in trust for Hendley & Go., who are declared to be Daniel’s only creditors; that he collect them and pay the proceeds over to them until their judgment is fully satisfied.
    Swearingen filed a motion for a new trial, which being overruled, he appealed.
    There are several assignments of error, but the appellant relies principally upon these — that the. judgment is against the evidence, and that the proper parties were not made.

      Sayles & Bassett, for appellant.

      Shepard dk Garrett and T. W. Morris, for appellees.
   Quinan, J.

Hpon the trial it appeared in testimony: Daniel was a retail merchant in Brenham. Previous to the year 1874 he had been in business with one O. M. Daniel, at the same stand. C. M. Daniel died that year, and P. M. Daniel bought out his interest in the concern from his widow and continued the business. In 1876 his health failed. He was afflicted with asthma, and unable for weeks to attend at his store. He was unsuccessful in business. It is admitted that he was then in failing circumstances. He determined to close up his business and leave Brenham. He swears that he was induced to this by his ill-health; that he had to leave or die; and his statement to this effect is abundantly corroborated by other witnesses. He was indebted to one Jennings, who clerked for him and had deposited with him $2,400, which he had used in his business, about January, 1876; he settled his debt to Jennings by transferring him. good claims against his debtors for the amount, allowing him twenty per cent, for collecting. He offered his stock of goods for sale to several parties, and finally closed a trade with Hodde & Werner for it, on the basis of a discount of forty per cent, on eastern cost, payable in their notes for $1,641, due 1st January, 1877, and another for $948, due 1st July, 1877. The sale was made openly and publicly without any effort at concealment. While the goods were being delivered and before they were paid for, Basset & Basset, to whom he was indebted for borrowed money, paying two per cent, interest, and who had a judgment by confession for the amount as well as some collateral securities, took out execution on their judgment, and, with the sheriff, proceeded to have a levy made upon the goods. This debt was then settled by transferring to them one of the Hodde & Werner notes and a note on Curry, and the sale to Hodde & Werner was completed. They rejected a small lot of damaged goods worth some $400. That the sale was a fair one and the price a full one, considering that the stock was an old one, is amply proved by Werner and Hodde and other witnesses.

On the 10th August, 1876, Daniel executed to Swearingen the trust deed already mentioned, and that deed was recorded the same day.

. The assets scheduled, including the collaterals Basset held, were turned over to Swearingen. The goods sold to Hodde & Werner, and these assets, were all the property Daniel had subject to execution, except the remnant of goods, which Daniel proceeded to sell as he could, and with the proceeds he received not more tham$200; he paid a debt to his cook of $125 for money of hers deposited with him, and some other small debts, and delivered what remained to S we atingen.

He retained a note on one-, which he swears was really his wife’s property, being for a horse and buggy belonging to her. This note he delivered to Swearingen to collect for her, and it is in judgment and uncollected. There was also a small note of $18, “a private note,” which he retained. Daniel swears that his assignment to Swearingen was of all his property except the amounts mentioned and his homestead ; that the balance of the proceeds, remnant of goods sold by him, which amounted to some $200 or $250, after ■paying his cook and some small debts, he used in paying his way to St. Louis, and board for two weeks after he got there; that he did not leave his wife $5 to live on while he was away. She had to sell furniture out of the house to get something to live on.

Among the list of debts in Daniel’s schedule is one to Don Hargodine, St. Louis, and one to Edward J. Gay, New Orleans, for $4,500. It was admitted that Hargodine and Gay were relatives of Daniel, and he testifies that the Gay debt, which was his largest debt, was in notes of C. ÜVC. & IP. Daniel, given in 1870. In answer to a cross-interrogatory put by plaintiff respecting his schedule of debts, he says the credits have all been entered correctly. The debt to plaintiff and the Cannon & Williams debt are included in the list.

The testimony of Daniel as to his motives in selling out, and denial of all fraudulent intent, is full and direct. He says that he offered to pay Hendley & Co. in claims, as he had paid Jennings, but it was not accepted. That but for ihis ill health he could have continued in' business, for that Gay would not push him and that he could have deferred the Basset debt.

Gay was understood to have been the backer of the firm tif C. M. & P. M. Daniel, and of P. M. Daniel.

The Hendley judgment, the garnishee’s answer, the deed Of assignment with its schedule of debts and assets, were read upon the trial.

We have given a full compendium of the testimony, and have omitted no circumstance which could properly affect the issues involved.

Does then this testimony support the judgment rendered ?

¡It is not contended that the deed of assignment from Daniel to Swearingen is void and fraudulent upon its face. It was such a conveyance as was lawful for Daniel to make, ft -was absolute as regarded him; it contained no reservation for his benefit, nor stipulation binding upon his creditors. Their rights and his liabilities continued the same as well after as before its execution.

If the deed is invalid, then, it must be because it is in violation of the statute, “ made and contrived of malice, fraud, covin, collusion or guile, to the intent or purpose to delay, hinder or defraud creditors.”

To avoid it upon these grounds it is essential to establish1 a fraudulent intent in Daniel. Hot alone that creditors may be delayed in the collection of their demand against him,, for that may be incidentally the result of any transfer of property by one who is indebted, however fair and honest the transaction may be. It is the fraudulent purpose only which will justify the courts in setting it aside. And fraud is a fact which, like any other fact, must be proven by competent testimony. Mere surmises, for they may be visionary, nor suspicions, for they may be unfounded, will be sufficient. Hot often, indeed, can the fraudulent intent be proved by direct testimony, for fraud seeks concealment, but because the proof may be difficult it is not the less essential. And there may be facts and circumstances surrounding the fraudulent transaction which, given in evidence, may expose its true character as clearly as the most direct testimony. Are such disclosed by the proof in this case? We will consider the objections to the validity of the deed pointed out by the plaintiff as tending to show the fraudulent intent of-Daniel in making it, somewhat in the order they are presented, passing over those which are immaterial.

It is objected:

1. That Daniel was in failing circumstances and secretly transferred $2,400 in accounts to Jennings in payment of a debt due him. The answer to this is that a debtor, though in failing circumstances, has the legal right, if done bona fide, to prefer creditors; and the secrecy of this transaction is not shown, or that any secret was made of it. In fact it would seem that a like offer was made to Hendley & Co. for the discharge of their debt.

2. That the sale of his goods to Hodde & Werner was secretly made and not for full value. ' This proposition is not supported by the proof. Appellee says the sale was as “privately made as its nature permitted,” and we add as publicly. More parade and notoriety of set purpose given to it would of itself have been a circumstance of suspicion. And all the witnesses show that the price was a full. one.

3. That after the sale to Hodde & Werner Daniel retailed the rest of the goods, save a few worthless remnants, at such price as he could get in cash, and used the proceeds in paying a debt to his cook, as he says, in buying provisions for his family, in paying his way to St. Louis and in. supporting himself two weeks after he got there. This was no more than Daniel had a legal right to do. It was rather commendable than otherwise that he paid this, debt, and the testimony shows that it took very little to support him. He had, as yet, made no assignment, and it will be observed that although in fact he did assign, with the exception of a very trifling sum, all his property for the payment of his debts, the assignment does not purport to convey all, but the assets conveyed are specifically designated in his schedule. The reservation of these trifling amounts are no indication of fraud.

4. That the claims transferred were most of them worthless, and the land was not properly conveyed. The answer to this is, it is shown that the claims were, with a trifling exception, all he had, and that if the land did not pass by the deed to the assignee, it is subject to Hendley & Co.’s judgment, of which surely they cannot complain.

5. That the creditors named in the assignment did not accept, nor has the assignee any evidence of the validity of their claims.

The law presumes the acceptance by the creditors of an assignment made for their benefit, and this deed imposed no terms upon them. 22 Tex., 708. And the fact of the existence of Daniel’s indebtedness was sufficiently proven. His testimony showing his indebtedness on the 0. & M. Daniel notes given to Gay, and that all credits were properly entered, to which he was entitled as against the creditors named in the list, was sufficient proof in the position of the case. The garnishee’s answer stood for proof until rebutted. The plaintiff alleged that the creditors named were fictitious, and it was for him to introduce some proof to throw doubt or suspicion of fraud upon the assignment before the garnishee could be called upon to make further proof.

6. The list of creditors in the schedule shows the names of Con Hargodine and Ed. J. Gay, as holding more than one-half the claims against Daniel. These men are all relatives of Daniel. E. J. Gay was not only a relative, but was also the “ backer ” of the- successive firms of McOreery & Co., and C. M. & P. M. Daniel. It is also objected that the debt to Gay was barred by limitation.

How Daniels was not bound to plead the statutes of limitation, nor is it shown that he could have done so successfully, and assuredly neither in law nor in morals was the obligation upon him less binding to pay his honest debts, because they were due and owing to a kinsman, a friend and an indulgent creditor. $

7. Partnership creditors have the right to be satisfied out of partnership assets before individual creditors can come in, and, likewise, individual creditors have the same right to preference in the distribution of individual assets. And from this proposition plaintiff contends that the notes of C. & M. Daniel were not good, against the assets in the hands of the garnishee, until the individual creditors were paid.

But this is not the law. Cox v. Miller, 4 L. J., 146; Higgins v. Rector, 47 Tex., 361. And if it were, it is not easy to perceive how the inclusion of that claim, for which P. M. Daniel was liable, in the list of his debts, could be construed into an evidence of fraud in the assignment.

Finally, the plaintiff objects that Daniel is not a very credible witness; but he is in the main facts corroborated by other witnesses, and by no witness or fact discredited. Mr. Ben. Basset’s belief that he was not at all times reliable in his statements,” tends in no way to impeach his credibility under oath.

In none, then, of these objections which we have considered separately do we find the proof of fraud, and they can acquire no taint of it from grouping them together. Each circumstance is in itself perfectly consistent with the existence of an honest intent in the mind of Daniel, and, taken all together, they cannot be tortured into proof of fraud, malice, covin and deceit.

The doctrine of the law upon this general subject of fraudulent conveyances to defeat creditors is nowhere better laid down than by Mr. Justice Roberts in Baldwin v. Peet, 22 Tex., 717, and we cite that case in support of the conclusions we have reached in discussing the points made by the appellee.

“ If the purpose in executing a deed of assignment is to pay honest debts, either by general distribution or by exercising a preference among creditors, it will be valid. In the language of a very great judge (Daston, J.), every conveyance of property by an insolvent or embarrassed man, to the exclusive satisfaction of the claims of some of his creditors, has necessarily a tendency to defeat or hinder his other creditors in the collection of their demands. But if the sole purpose of such conveyance be the discharge of an honest debt, it does not fall under the operation of the statute of frauds.

“ Courts of equity regard with favor the fair and just motives of a failing debtor in the equal distribution of his effects by an assignment of all his property, even though its effects may necessarily be, and must be foreseen to be, to hinder or delay a vigilant or pressing creditor; and it can readily be conceived that this motive, as well as that of preferring some favorite creditors may and often does rise above any mere desire to thwart the urgent pursuit of any one or more creditors.”

These observations apply with peculiar aptness to the circumstances of this case. That Daniel, in failing circumstances, in failing health, under the necessity of a change of climate for the preservation of his life and the restoration, if possible, of his health, should take measures for the settlement* of his affairs and closing of his business at Brenham, and distribution of his effects fro rata among his creditors, concealing nothing, reserving nothing, preferring those who had deposited their money with him, discharging the Basset debt, which bore such a rate of interest as if suffered to accumulate would absorb all his assets, and the collection of which by execution sale was imminent, stinting himself and his family of even the necessaries of life,— that these acts are but the legitimate offspring of a malicious intent to defraud his creditors is utterly irreconcilable with any just rule for judging of human nature or conduct. Indeed, reviewing all the testimony, we are impressed with the conviction that Daniel’s conduct was that of a man sincerely desirous of doing equity among his creditors, and that the assignment made by him was neither inequitable nor fraudulent.

[Opinion delivered November 8, 1880.]

The remaining assignment of error requires no extended notice. We do not think the court erred in refusing a new trial to make parties. In this suit Swearingen took upon his own shoulders the burthen of the contention. He did not ask that parties should be made until after he had been worsted in the controversy, and it was then too late to avail himself of this objection, or to demand that relief for which he had failed to ask. As the case will be reversed, he can upon another trial, if he deems it necessary for his protection, have the proper parties made, or the creditors can intervene for the assertion of their own rights.

It may be proper to remark that the judgment rendered, supposing the recitals in it to be correct, is not one which the court should have rendered. It is manifestly inconsistent to set aside the deed of trust as to Hendley & Co., and yet hold Swearingen as their trustee, and decree his execution of the trust for their benefit. If the deed was annulled, the garnishment was not binding upon the choses in action in Swearingen’s hands, for these are not liable to garnishment.

Because the judgment of the court is not supported by the evidence, we are of opinion that it is erroneous and should be reversed, and so award.

Reversed and remanded.


author: A. S. Walker, J.

text:
    Alexander Uhl et al. v. Ramon Musquez.
    (Case No. 2767.)
    1. Grant—Presumption as to acts of officers of a former government.— When it does not clearly appear to the contrary, the acts of officers of a former government will be presumed to be within, and not in excess of, their authority. A grant made December 17, 1834, by “Gaspar Florez, first alcalde of Bexar and provisional civil chief of the province,” to Ramon Musquez, of three hundred varas square of “ secularized Mission lands ” in the “ outer labor ” of the city of San Antonio, would, if proved, be a sufficient evidence of title in Musquez. 1 Tex., 699; 7 Tex., 443 ; 9 Tex., 335; 15 Téx., 90; 47 Tex., 583; Wharton on Ev., sec. 1315.
    3. Evidence—Certified copy.—A document purporting tó be “a certified copy of the record of a grant to Ramon Musquez, registered in the books of registry of Bexar county in Spanish,” is inadmissible in evidence, because, if the original was a grant from the government, it should have been archived in the general land office, and .copies thereof authenticated by the certificate of the commissioner of the general land office. If the original was a transfer from the authorities of the city of San Antonio to Musquez, it was an archive of the office of the clerk of the county court of Bexar, and copies of such archive, and not of the registry of Bexar county, would be admissible. 47 Tex., 394; 49 Tex., 396; 9 Tex., 103; 8 Tex., 330.
    3. Registration —Evidence.—To render a certified copy of the record of an instrument admissible in evidence, the registry of the original must have been authorized. 47 Tex., 458; 51 Tex., 58.
    4. Notice — Original grant.— The presence of an original grant as an archive in the office of the county clerk, even of the county where the land may be situated, is not notice. The registration laws take no notice of the archive as part of the records provided for by them. 11 Tex., 93; 39 Tex., 333; 47 Tex., 114.
    5. Innocent purchaser without notice.—The purchaser of land covered by a grant which has never been deposited in the general land office, delineated on the county map or properly recorded in the county where the land is'situated, having paid the purchase money, may plead innocent purchase without notice. 45 Tex., 361; 15 Tex", 410.
    6. Fee-simple deed — Three tears’limitation.— A deed reserving a lien for the purchase money, and providing for foreclosure and not for resumption of possession upon failure to pay interest and purchase money, conveys a fee-simple legal title, and the vendee may plead the statute of limitation of three years under it. 47 Tex., 540; 53 Tex., 353.
    7. Amendment—Limitation.—-An amendment making new parties defendant is, as to those so made parties, a beginning of the suit, and limitation runs to the date of filing such amendment. 28 Tex., ' 583; 52 Tex., 883.
    3. Trespass to try title — Part owners.— finder the Revised Statute, part owners suing in trespass to try title must disclose the interest claimed.
    Appeal from Bexar. Tried below before the Hon. George H. Uoonan.
    The opinion states the facts.

      Leigh <& Dittmar, for appellants.

      Wadder c& Upson, for appellees.
   A. S. Walker, J.

June 6,1867, Bamon Musquez brought an action of trespass to try title in the district court of Bexar county ^gainst John Bruggeman and Alex. Uhl, for a tract of land described in the petition as follows:

“ A certain tract and parcel of land lying and being in the limits of the corporation of the city of San Antonio, granted to petitioner by the government of the late Mexican state of Coahuila and Texas, on the 17th day of December, 1824,.or about that date, lying and being in what is known and called the outer labor of said city of San Antonio, being a square of three hundred varas on each side, fronting and bounded on the northerly side by the road running from San Antonio to the Mission of San Juan; east by lands then vacant (city lands); south by lands formerly belonging to the Mission of Concepcion; west by the road from San Antonio to the lower missions.”

March 4, 1868, the defendants filed their motion for an order of survey, and on December 23,1869, this motion was granted, and Francis Giraud appointed “ to make a survey of the land in controversy.”

On the 7th of January, 1870, Mr. Giraud made a return of the survey made by him, accompanying it with a plat of the land, which shows that1 John Bruggeman, Ernest Friede, Jacob Dresch, John Sodrock and Sebastian Eosmadowsky were respectively in possession of the land claimed by plaintiff.

The death of Bamon Musquez having been suggested and leave granted to make his heirs parties plaintiffs, and leave having also been grata ted to make defendants, an amended petition was filed on April 8, 1870, substituting the heirs of Musquez as plaintiffs, and bringing in the persons above named as defendants. A. Uhl, one of the original defendants, not being found upon the land in controversy, was from thenceforward no longer in the case, and the plaintiffs éntered a dismissal as to him.

A further amended petition, filed February 16,1872, gives a more full description of the land than that contained in the original petition.

The defendants, by motion, asked for another order of survey. Giraud, it was alleged, had been appointed, by action taken on defendants’ motion, in their absence from the court-house.

On the trial the testimony was voluminous. Over objections, a copy of the grant claimed by plaintiffs to have been made for the land was read. The copy was certified from the clerk of the county court of Bexar county. The particulars as to the document will be stated hereafter.

Several surveyors were examined to the topics discussed and reported in Giraud’s report under the order of survey. The testimony as to occupation of the land recently after the date of the alleged grant was conflicting; as was the testimony to its locality.

The testimony as to the heirs of Musquez left it in doubt what interest in the land was actually owned by those made parties plaintiffs.

The defendants claimed under a deed executed by the city of San Antonio. It was admitted that the city has a grant from the king of Spain for the land within the lines indicated by Giraud’s plat, which includes the land sued for. The city sold the land claimed by defendants as lot Bo. 32, April 11, 1855, to A. Bauendorf, on a credit of fifty years as to two-thirds the purchase money. Bauendorf sold to one G. Freisleben, who, having paid the purchase money, the city, March 20, 1858, released to Freisleben.

The conveyance by the city authorities to Nauendorf, April 12, 1855, after reciting the terms of sale, and payment of thirty-three and one-third per cent, by the vendee, continued :

“ Now, therefore, know all men by these presents, that the party of the first part, for and in consideration of said sum paid and secured to be paid, as above mentioned, has this day sold, released, conveyed and set oyer, and, by these presents, does sell, release, convey and set over, unto the said party of the second part, all the right, title and interest of the said city of San Antonio in and to the above mentioned and described lot or parcel of ground, to have and to hold the same, together with all and singular the rights, privileges and appurtenances thereunto belonging, or in anywise appertaining, unto the said party of the second part, his heirs and assigns forever.”

Following was a clause that “a special mortgage and vendor’s lien should exist” to secure $200, the balance of the purchase money, payable in fifty years, with interest at eight per cent., payable semi-annually; upon failure of payment of interest when due, the whole could be collected by judgment, the right to pay at any time being reserved. “ And in case of the full payment of the purchase money, the mortgage and vendor’s lien herein retained shall be fully released and discharged.”

The defendants showed conveyances under the grantee from the city. Defendant Bruggeman entered into possession in 1856, under deed from Freisleben, and held part to trial. There was some testimony of possession by others.

The charges of the court discussed will be sufficiently shown hereafter.

Verdict and judgment rendered for plaintiffs, and defendants appealed.

The document read as evidence of plaintiffs’ title is a copy of the protocol of a title purporting to convey from “ The Mexican Nation ” to Bamon Musquez three hundred varas square of secularized mission lands, made by Gaspar Florez, “ first alcalde of Bexar and provisional civil chief of the province,” and of date December 17, 1824.

Following the copy, and bearing date September 10,1839, is a certificate by John S. Simpson, deputy clerk of Bexar county, certifying that “the within deed is one of those originally remaining in the archives of the said county, and as such recorded under an act entitled 1 An act the better to define the duties of recorders,’ approved 19th January, 1839.”

The whole document is certified as follows: “ That the above and foregoing is a true copy of the original on record in my office in Book A, pages No. 215 and 216. In testimony of which I hereto sign my name and impress of my official seal at office in San Antonio, October 5, A. D. 1865.

(Signed) “ Peyton Smith, Oik. D. O. B. 0.”

As a basis for the secondary evidence, John 0. Crawford, agent for the plaintiffs, the heirs of Bamon Musquez, made affidavit “ that he has made diligent search and inquiry at various times for the original; ... he has at various times made diligent search at the office of the county clerk of said Bexar county for the said original.” . . . “He has also made diligent search and inquiry at all places where said instrument could reasonably be expected to be found; that he has made inquiry of the plaintiffs.” , . . “That he has not been able to find the same; . . . that the same have been lost,” and “ that they cannot be procured,” etc. The affidavit was made by agent, in absence of plaintiffs from the state.

The trial was had January, 1874. The statement of facts prefacing the paper offered and read describes it as “ a certified copy of the record of a grant to Bamon Musquez, registered in the books of registry of Bexar county in Spanish,” as follows, etc.

There was evidence of possession by the grantee for several years next after the date of the document of the land sued for.

Objections to the testimony were urged: 1. That the document was not a grant; and 2. That the testimony was incompetent to prove the grant.

1. Was the document a grant?

We are not informed of the nature of the title extended to Musquez beyond the terms used in the proceedings constituting the title. It is stated generally in Yoakum, vol. 1, 108, that “ on the 10th of April, 1794, Don Pedro de Hovo, governor of Chihuahua, whose jurisdiction also extended over Texas, secularized all the missions within the two provinces ; by which all the temporalities of the missions were taken out of the hands of the friars and delivered to the civil officers of Spain. The people of the missions, however, were not left destitute, for, by the same decree, the mission lands were divided among them, and titles given to each man.”

It is not shown in the record, or by reference to any authority, what powers could lawfully be. exercised by the provisional civil chief, the Alcalde Gaspar Florez, at the date of the grant. The rule adopted in regard to the acts of Sancedo, in attempting, without authority, to issue titles to land, as shown in Jones v. Garza, 11 Tex., 208, 209, does not necessarily determine the validity or invalidity of the act of Florez in carrying out what seems to have been a part of the order secularizing the mission lands, in distributing the lands among the members of the several missions.

We have little knowledge of the machinery of the civil government of the newly organized state of Coahuila and Texas in the first months of its existence, during which Musquez’s title was executed.

In this obscurity we may follow the decisions: “The presumption of law that the public act of the public officer, purporting to be exercised in an official capacity, and by public authority, shall be presumed to be the exercise of a legitimate and not an usurped authority, is recognized in its full force.” Holliman v. Peebles, 1 Tex., 699.

Which is expressly approved in Hancock v. McKinney, 7 Tex., 443: “This doctrine is so manifestly correct and just as to commend itself to our unqualified consent.”

Again, extended in Jenkins v. Chambers, 9 Tex., 235: “We have heretofore decided that the construction of their powers, and of the law's which conferred them, adopted and acted upon by the former authorities of the country, must be respected, unless it be clearly shown that they have exceeded their powers, or have acted in manifest contravention of law.” Expressly approved in Ruis v. Chambers, 15 Tex., 590, opinion by Chief Justice Hemphill. And in Johns v. Schultz, 47 Tex., 582, in case of a title granted by the authorities of El Paso, there being no evidence of a grant by the government to the towm, Moore, C. J., says: “As has been often said, it will be presumed that the acts of officers of a former government are within and not in excess of their authority.” See, also, Wharton on Ev., sec. 1315, and authorities cited. We therefore may regard the grant, if proved, as sufficient evidence of title in Musquez.

2. Was the document offered competent as proof?

The title purported to convey the land “in the name of the Mexican Nation; ... in virtue, also, of the order of the supreme executive authority for the distribution of these lands.” On its face, then, it was a grant from the government. If such be its effect, it should have been archived in the general land office. Copies of the title could only in such case be authenticated by certificate of the commissioner of the general land office. Pas. Dig., 70, 71, 3715; The State v. Cardenas, 47 Tex., 294.

Had it been acknowledged or proved for record under any of the registration laws, it could also have been duly admitted to record in the county. Such record would impart to copies given therefrom the effect given to other copies of deeds duly recorded taken from the records. Pas. Dig., 3716.

It was not so authenticated for record; neither by acknowledgment nor by affidavit of witnesses, as provided by the registration laws.

If the documents composing the title formed but a transfer from the city authorities to Musquez, then the title was properly an archive in the office of the clerk of the county court of Bexar county. Hart. Dig., art. 260; Cowan v. Williams, 49 Tex., 396; Hubert v. Bartlett, 9 Tex., 102; Titus v. Kimbro, 8 Tex., 221, 222; The State v. Cardenas, 47 Tex., 294.

To copies certified by the clerk of the county court of such archives are given the validity as evidence of the originals; if even a greater probative power than had by the originals be not created and vested in such copies by the act authorizing them. Hart. Dig., 746; Titus v. Kimbro, 8 Tex., 222.

Counsel for appellees insist that the copy admitted in evidence was taken from, the original. This is negatived by the statement of facts; it is there stated to be “a certified copy of the record of a grant to Kamon Musquez, registered in the books of registry of Bexar county in Spanish,” etc. The document used must, therefore, be treated as a transcript from the registry of deeds of Bexar county.

To render such copy admissible in evidence, the registry of the document must have been authorized. Pas. Dig., 3716; Taylor v. Harrison, 47 Tex., 458; Texas Land Co. v. Williams, 51 Tex., 58, 59.

The act of December 20, 1836, “ organizing the inferior courts,” etc. (Hart. Dig., 260), required the originals of such contracts to be deposited in the office of the clerk of the county court .of the residence of the officer before whom taken.

The “act the better to define the duties of recorders,” of January 19, 1839 (Hart. Dig., 2760, 2761), and under which this registry was made, provided “ that it shall be the duty of the clerks of the county courts to record all deeds, conveyances, mortgages and other liens affecting the titles to land and immovable property situated within the same, which shall be presented to them for record; provided one of the subscribing witnesses shall swear to the signature of the signer, or he himself shall acknowledge the same; which proof or acknowledgment shall be made either before some county court or chief justice of the same, or before the clerk in whose office such instrument, is proposed to be recorded, a certificate of which shall be made upon such instrument by the proper officer, and become a part of the record,” etc. . ’. .

2. “ That copies of all deeds, etc., when the originals remain in the public archives and were executed in conformity with the laws existing at their dates, duly certified by the proper officers, shall be admitted to record in the county where such land lies.”

The district court act of 1846 made such copies evidence in the district court. Hart. Dig., 746.

The presence of the original as an archive in the office of the county clerk, even of the county where the land may be situated, is not effective as a registry. The registration laws take no notice of the archive as part of the records provided for by them. It is not constructive notice. Watson v. Chalk, 11 Tex., 93; Hawley v. Bullock, 29 Tex., 222; Lyttleton v. Giddings, 47 Tex., 114.

To be recorded under the act of January 19, 1839, the original deed,'etc., should have been proven by a witness, or acknowledged by the maker; or, in case the document be an archive, then a copy, duly certified by the proper officer, should be tendered for record and should have been recorded.

If book A, from which the copy was taken by Smith, the county clerk, be a book of archives, such does not appear, and on a new trial can be shown (Hutchins v. Bacon, 46 Tex., 415), in which event the copy would be competent.

The instrument tvas neither acknowledged nor proven for record as stated above.

It was not a copy given from the custodian of the original. The registry was therefore not authorized by the law.

The registration being irregular, the certified copy would have no validity as such. Holliday v. Cromwell, 26 Tex., 193; Taylor v. Harrison, 47 Tex., 457; Peters v. Clements, 46 Tex., 114; Cavit v. Archer, 52 Tex., 170; Deen v. Wills, 21 Tex., 644.

Whether, therefore, the document be a grant from the government or a deed between parties, it was not proven by the production of the copy made by Peyton Smith from the record in his office October 5,1865, offered in evidence; that is, such copy was not admissible even as secondary evidence.

While the copy from the record, was inadmissible under the statute (Pas. Dig., 3716), it is not seen why the record itself, which is a certified copy from the original, an archive in the proper office, if a deed between parties and not a grant, apart from its character under the registration laws, may not be used as a copy made and certified under the law. Hart. Dig., 260, 746, 2761; Houze v. Houze, 16 Tex., 601. Nor would it be incompetent to exhibit in evidence the record, with proof of its identity as an ancient record tending to show the existence and the contents of the originals. Wharton on Ev., 113, 114, 359; Greenl. Ev., sec. 144, and note.

II. The locality of the land sued for was an issue of fact, with the burden of proof upon plaintiffs, and was submitted to the jury, whose verdict had testimony to sustain it. We cannot reverse for contradictory testimony.

III. The practice in the court below in granting the defendants’ order of survey in absence of defendants’ counsel, and appointing the county surveyor to execute the order, does not appear to have worked injury to defendants. All the surveyors introduced as witnesses were heard, and the jury was directed to find upon the whole testimony before the court.

IT. The instrument executed by the mayor of the city to Nauendorf for the land did convey the legal title; it reserved a lien and provided for the foreclosure, not for resumption of possession upon failure to pay the interest, etc., and purchase money. The instructions that none of the deeds were fee-simple deeds but one executed in 1858, and limiting the right to prescribe, under art. 16 of statute of limitations, to those holding under “ unconditional deeds,” were not properly given. Thus, it having been admitted that the city had a grant, and that the land was within its boundaries, with the conveyances in evidence, with the evidence of possession by Bruggeman at least, the submission of the defense of three years to the jury was authorized. Its rejection was error. Elliott v. Mitchell, 47 Tex., 450; Compton v. Baker, 52 Tex., 252.

Y. Again, it seems that the doctrine in Guilbeau v. Mays, 15 Tex., 410, was applicable, and the defendants asked the charge. The Musquez grant “ had not been deposited in the general land office, or recorded (properly recorded) in the county where the land was situated, nor was it delineated on the county maps,” or elsewhere. The vendee from the city distinctly denied notice in fact. It was shown that he had paid the purchase money, etc. There was proof by several of the defendants of their payment upon their purchase of parts -of the larger lot bought from the city, and of other facts necessary to support the plea. It does not appear that the mere form of the deed prevented the defendants from the defense of innocent purchasers for value, without notice, on showing that the land, and - not the right to it, was the subject of the conveyance. Harrison v. Boring, 44 Tex., 261.

There was error in refusing the instructions asked on this subject by the defendants.

YI. Under the Revised Statutes, part owners suing in trespass to try title must disclose the interest claimed. This should be required by amendment before another trial. When the case was tried below, the practice was not violated by the court. The plaintiffs were tenants in common and showed an interest in the grant.

YII. The amendment making new parties defendants was, as to them, the beginning of the suit. The charge of the court, as to limitation and valuable improvements, should have been adapted to the facts, of which the date of the filing of suit against them may have been material. Burleson v. Burleson, 28 Tex., 383; Stovall v. Carmichael, 52 Tex., 383.

YIII. Touching the showing made as basis for the introduction of secondary evidence of the document relied on as title to the plaintiffs’ ancestor, it is suggested that upon the theory that the instrument is not a grant from the government, but only a conveyance from the municipal authorities, that the county cleric, as the custodian of the original as an archive, should have been called and examined touching the loss of or absence of it from his office, its place of deposit.

[Opinion delivered November 15, 1880.]

For the error of the court in overruling the objections made by defendants to the evidence of the grant offered, and for errors in the charges given and refused, as above indicated, the judgment below should be reversed.

Reversed and remanded. .'