McMahan v. Smith , 16 Tex. 335 ( 1856 )

Wheeler, J.

It is unnecessary, in this case, to inquire, what are the rights of a purchaser at a sale by an administrator, acting under a grant of administration by a Court not having jurisdiction over the particular estate, but having a general jurisdiction to grant letters of administration. For, whatever may be the rights of a purchaser, bona fide, at a sale for the payment of debts, made in the due course of administration, under a grant void for the want of jurisdiction in the particular case, it is clear, beyond question, that a sale, under a grant of administration, obtained fraudulently and contrary to law, can confer no rights upon a purchaser with notice of the fraud, as against the heirs, or others interested in the estate, who are thereby defrauded. If the allegations of the petition are true, the letters of administration in this case were fraudulently obtained ; and the plaintiff in error had notice, and is equally affected by the fraud, with his fraudulent assignor, who procured the illegal grant of administration; and there being no statement of facts, the presumption, in support of the judgment, is, that the proof corresponded with the averments.

The petition avers that the plaintiff’s ancestor was, for many years previous to his joining the army in 1842, a citizen domiciled in the county of Harris ; that he had no other residence in the State ; that his principal estate is, and always has been, in that county, consisting of land and stock ; that he owed no debts ; that when he left that county, in 1842, to join the army, he left his effects and estate in the hands of an agent, who has paid the taxes thereon up to the present time ; that he died leaving his estate unincumbered by debt, whereupon it descended to the plaintiff as his sole heir ; yet that the defendant Ryan procured himself to be appointed administrator of the estate by the Probate Court of Port Bend county, which Court had no jurisdiction of the estate ; that he sold the certificate in question to Herndon, who had notice of the rights of the plaintiff and the want of authority in Ryan ; and then Herndon sold to the defendant McMahan, who purchased with like notice ; and drew the money thereupon from the State treasury.

There can be no question that these facts disclose a case of wrongful and fraudulent conduct on the part of the defendant Ryan, in procuring the letters of administration to be issued ; and that it was a fraud upon the plaintiff, for the defendants toFpur chase and take from Ryan the plaintiff’s property, with notice of the rights of the latter, and the want of authority in the former. The petition, it is true, does not expressly charge fraud ; but it states facts which are quite inconsistent with an honest intention, and from which none other than an intention to defraud can rationally be inferred; and it charges an illegal, wrongful and unauthorized intermeddling with the estate, on the part of the defendants, to the plaintiff’s injury. Though a fraudulent intent is not expressly averred, it is a necessary consequence of the facts alleged. And this Court has heretofore decided, that where the facts alleged constitute a fraud, it is not essential expressly to charge that they were done with a fraudulent intent. If it be a necessary consequence of the facts, the Court will deduce the legitimate conclusion from them, though it be not drawn by the pleader. (Carter v. Carter, 5 Tex. R. 93.) That the acts with which the defendants are charged must be regarded as fraudulent, and as necessarily operating to defraud the plaintiff of his rights, cannot admit of a question.

It is said in argument that there was no evidence of collusion or of notice to the plaintiff in error of his co-defendant Ryan’s want of authority. This may be true in point of fact; but as the evidence is not before us, and the fact of notice is expressly alleged, we must presume in support of the judgment, that it was proved.

Supposing, as, in the absence of the evidence, we must, that it corresponded with the plaintiff’s averments, it is not perceived that there is any error in the charge of the Court. But it is unnecessary to consider that question. Repeated decisions of this Court have settled, that the correctness of the rulings of the Court, upon instructions to the jury, will not be revised, in the absence of a statement of facts. (Armstrong v. Lipscomb, 11 Tex. R. 649.) We are of the opinion that there is no error in the judgment, and it is affirmed.

This Opinion disposes also of the case of McMahan v. Smith et al., which is a stronger case for the plaintiff; there having been an administration of the estate in Harris county, closed, before letters were procured by Ryan in the county of Fort Bend. The judgment in that case is also affirmed.

Judgments affirmed.