Bradbury v. Reed , 23 Tex. 258 ( 1859 )

Wheeler, C. J.

One who bids off property at an administrator’s sale, cannot be required to comply with the terms of the sale, until there has been a decree entered on the minutes of the Probate Court, confirming the sale, and ordering a conveyance to be made to the purchaser, if it be of lands or slaves, by the executor or administrator. (Hart. Dig., Art. 1176.) Until this has been done, he will not be in default for failing to comply with the terms of the sale. And he cannot be held liable in an action under Article 1175 of the Digest, until he is in default. The decree of confirmation, was essential to fix the liability of the defendant, under the statute.

Although it is true, that a demurrer to evidence admits every fact and conclusion which the evidence conduces to prove ; that is, which a jury could legally infer from the evidence; it cannot be held to admit a fact essential to make out the plaintiff’s case, and entitle him to recover, which there is no evidence conducing in any degree to prove, and which a jury could not, therefore, legally infer from the evidence. The confirmation of the sale, if it existed, was matter of record; and as such, must have been proved, to entitle the plaintiff to a recovery.

There is no error in the judgment, and it is affirmed.

Judgment affirmed.