Davis v. Stewart , 4 Tex. 112 ( 1849 )

DipscOMU, -T.

The proceedings for the sale of the land commenced under the act of 181(1. That act expired by operation of the act of 1848 on the 1st of August, 18 to. and the proceedings had subsequent to that time were under the last-mentioned act. By the G7th section of Ibis act it is provided that when there has been an order of sale, it shall be the duty of the executor or administrator to make a return of the account of .such sal<¿. “Such account of sale shall be in n riling, shall specify the property sold, liie name of the purchaser, the price for which it was sold,"and the terms of such sale, and shall be sworn, to and subscribed by such administrator or executor before some officer authorized to administer oaths. "Whenever such aecomit'-of sale is returned, such return shall be noted on the minutes of the court; and at the term of the court at which it is returned, or if returned in vacation, at-the first term thereafter, it shall ho the duty of the chief justice to inquire into the manner in which such sale was made; and if satisfied it was fairly made, and in conformity with law, he shall cause to be entered on the minutes of the court a decree confirming- it and ordering- the account of sale to be recorded by the clerk, and a conveyance to be made to the purchaser of either laud or slaves by the executor or administrator; .if not satisfied that sueli sale was so made, he shall cause to be entered in like manner a decree setting it aside and ordering a new sale to be made.” (Acts of 1S48, 2D7.) It will be seen that much discretion is left, to the judge. If lie should believe that the sale was not fair, or that it was not made in conformity with law, it would be liis duty to set it aside and order it to be sold again. He is not required !o place upon the record the reasons by which he is governed either in confirming or rejecting a sale. It may have been a sufficient objection, in the judgment of the probate judge, to a confirmation of the. first sale that it hail not been returned by the executor; that although death had probably prevented such return, it could not be known with certainty that the executor would have so returned the sale had he lived long enough. Under such circumstances "it cannot be doubted, even if he could be. called on to assign his reasons for setting aside the, sale, the circumstances would fully-justify the conclusion ho had adopted. The purchaser could not be injured. When lie bid for the land he was aware that he was purchasing subject to the. confirmation or rejection of the sale by the probate judge; and if lie wished to do so, lie could be again a bidder at the second sale. If the decision of the judge oil the question of confirmation is subject to revision at all, this is clearly not a case that would call for the interposition of a higher tribunal. It may be, remarked that the act of 18-1G reposed in the judge the same discretion as to confirming and rejecting- a sale. (Acts of 1846, p. 315, sec. 17.) Again, the. appellant made no opposition to tlie action of the probate judge until long after tlie second sale had "been confirmed by the decree of the probate judge decreeing title, to be made to the second purchaser. It was then beyond the power of the court to revoke such sale and the title.

The 122d section of the aet referred to enacts:,“That all decisions, orders, decrees, and judgments of the County Court under the provisions of this act shall be, entered on the records of the court by the clerk at the time sueli de-cisión, order, decree, or judgment shall be made or rendered.” And the next section enacts: “That any person who-may consider himself aggrieved by any such decision, order, decree, or judgment shall have tlie right to appeal to the District Court Of the county; provided lie shall, within fifteen clays after such decision, order, decree, or judgment shall have been made or rendered, fde with tho clerk of said court a bond for costs and damages, with good and sufficient sureties, payable to the chief justice,” &o. There was no appeal taken from the decree, of tho probate judge setting aside the first sale in conformity to (his act. The opposiliou ought (hen fo have been made; and if the party felt aggrieved by the decree, lie could have appealed. It was not competent for the court, after having decreed title to Jones, the last purchaser, and after that decree had been executed, as we may reasonably infer it was, it not having been suspended by an appeal, to set aside the sale and revoke the title by a reversal of its own decree. There was then no error in dismissing the appellant’s petition for the want of jurisdiction. This ground being weil taken, it could not be. gotten over by an appeal to tho District Court; because if the court a quo has no jurisdiction, an appeal cannot be entertained, although tho court to which the appeal had been taken may have original jurisdiction of the question. It docs not seem tiiat tho appellant lias any just grounds of complaint. If, however, he had merits, lie has lost the opportunity of asserting- them by not taking- an appeal.

^Note4G.—Bradbury v. Reed, 23 T., 260; Neill v. Cody, 26 T., 286; Littlefield v. Tinsley, 26 T., 353. Note -IT. — When the Court makes an order to sell property, and at a subsequent term while the proceeding is stiM in fieri it is s-hown that tho property does nob belong to tho estate, the order of sale should bn revoked. (Wall v. Clark, 19 T.. 321.) Note 48.—Yerby v. Hill, 16 T., 377; Wells v. Mills, 22 T., 302; Hirshfield v. Davis, 43 T., 155.

Judgment affirmed.