Tippett v. Mize , 30 Tex. 361 ( 1867 )

Donley, J.

Burrell Benton, by his will, having disposed of his estate, and given particular directions as to the sale and distribution of it, provided that no other action should be had in the court in relation to the settlement of his estate than the probate and registration of his last will and testament, and the return of an inventory of his estate, directed that no bond should be required of his executor. An executor was named, and by a codicil another party was named as co-executor. On the decease of the testator, the parties named as executors appear to have declined to act under the will, and the appellant was appointed administrator of the estate of said decedent, with the will annexed, and gave bond as such. The sale of the negroes belonging to the estate was made by the appellant at the place and in the manner prescribed by the will, on the 14th of July, 1863, without any order of the court directing the sale or approving the same. That on the day of the sale the slave for which this note upon which this action is founded was given was purchased by and delivered to the appellee, who had said slave in his possession until slavery became extinct.

The defense which appears to have been mainly relied upon in the court below, and the only ground discussed in this court, is, that the appellant had no authority to sell the slave without an order of court and at a time and place not authorized by law, nor was any-account of the sale returned to and approved by the court, and thus the defendant did not acquire a title to said slave. Sales made by an administrator must be made in the manner provided bylaw. The statute has provided in what cases sales shall be made, and what acts are required to be done in order to give validity to such sales. It is said in Brown v. Christie, Tyler T., May, 1863, [27 Tex., 73,] that a sale by an administrator, at a place and time other than those prescribed by the statute or by decree, is not only irregular, but is in violation of law, and is therefore unauthorized and void.

In Peters v. Caton, 6 Tex., 554, it is said, that a sale by an administratrix, at a place and time other than those prescribed by the statute or by decree, is not only irregular, but is in violation of the law, and-is therefore unauthorized and void.

It is clear from these authorities, that, if the sale was made without any order of court directing the sale to be made, and without any return of the sale being made to and confirmed by the court, it cannot.be sustained, unless it be aided by the provisions of the will of Burrell Benton. By this will it is provided that the sale may be at the place at which the testator was residing at the time of liis decease, upon a notice that is particularly provided for in the will.

Article 777 provides, that “whenever in a will power is given to an executor to sell any property of the testator, no order of the chief justice shall be necessary to authorize the executor to make such sale, and when any particular directions are given by a testator in his will, respecting the sale of any property belonging to his estate, the same shall be followed, unless creditors or heirs may thereby be prejudiced in their rights.” [Paschal’s Dig., Art. 1324, Dote 496.]

If the sale had been made by the executors in this case • under the authority given in the will and the law we have cited iu pursuance of the authority contained in the will, it might have been sufficient to vest the title in the purchaser. A different question is presented when the sale is made by an administrator, who may have been an entire stranger to the testator, and in whom no trust or confidence had been reposed by the testator. This statute was considered in the case of Langley v. Harris, 23 Tex., 569, and it was there held, that “the section of the statute which gives the testator the right to insert such a provision in his will contemplates that the executor named will accept the trust confided to him. It is a special trust, which cannot be transferred to another by the trustee, or delegated to another by the county court. It confides in the discretion and integrity of a particular person, and if that person should fail to accept and exercise the trust, it is at an end. And, as in any other case where there is a will without an executor, the county court must appoint an administrator with the will annexed.” (O. & W. Dig., Arts. 705, 714, 882,) [Paschal’s Dig., Arts. 1269, 1274, Notes 466, 469.] This decree must be regarded as conclusive of the question involved in this case.

Dowling v. Duke, 20 Tex., 183, was a suit by defendant in error on a promissory note given by defendant in error with sureties, as the consideration agreed to be given for a tract of land purchased at administrator’s sale, and averred that Buke, the administrator, had never made a return of the sale to the county court, nor had the court ever confirmed the sale of said land, as sold by said Buke, but that said Buke wholly failed and refused to comply with the requirements of the statute in regard to probate sales of land. The court said: “If the averments of the answer be true, the plaintiff has wholly failed to perform on his part the contract of which" he is seeking to compel the performance by the defendants. It is quite too clear for argument, that he cannot enforce, by compelling the defendants to pay the purchase-money, until he has performed, or shown a willingness and ability to perform, on his part.”

In the case cited, it does not appear whether the plaintiff in error took possession of the property purchased. In this case it is shown that the the appellee took possession of and held the negro until he was released from slavery. This change in the status of the negro was sufficient to excuse the defendant from returning, or offering to return, the the negro to the appellant. If, by the act of government, the defendant was deprived of the power of returning the negro, it must be held that he cannot be required to per•form an act which is prohibited by law. If there had been no change in the law of property in negroes who were before held in slavery, the sale by the appellant of the negro to appellee was insufficient to vest in the latter the title, and it must be held that the note was given without any sufficient consideration, and that the judgment was properly rendered in favor of the defendant, and it is

Affirmed.