Wilson v. Harris

Counsel

Baker, Botts, Baker Lovett, for plaintiffs in error Sargents, Plumbs and Miles. — The judgment of the court below, in awarding to Harriet A. Sargent et al., appellees, an undivided one-half interest in lot 16 of the property in controversy, was correct, because title of William P. Harris, the father of appellant, and through whom appellant claims, passed to Harriet A. Sargent et al., appellees, by the sale made by Cornelius Ennis, trustee, on January 25th, 1888. Rogers v. Watson, 81 Tex. 403 . Even if the court should hold that an undivided one-half interest in and to lot 16 of the property in controversy did not pass to Harriet A. Sargent et al., appellees, under the sale made by Cornelius Ennis, trustee, still, nevertheless, the judgment in favor of Harriet A. Sargent et al., appellees, for an undivided one-half interest in lot 16, is correct, because appellant failed and refused to return to Harriet A. Sargent et al., appellees, the principal and interest of the note executed and delivered by appellant's father to Augustus Miles, the ancestor of Harriet A. Sargent et al., appellees. Howard v. North, 5 Tex. 290 ; Bailey v. White, 13 Tex. 114 [ 13 Tex. 114 ]; Herndon v. Rice, 21 Tex. 455 ; Morton v. Welborn, 21 Tex. 772 ; French v. Grenet, 57 Tex. 273 ; Northcraft v. Oliver, 74 Tex. 168 ; Burns v. Ledbetter, 54 Tex. 374 [ 54 Tex. 374 ]; Halsey v. Jones, 86 Tex. 491 . Hutcheson, Campbell Sears, for plaintiff in error Jas. T.D. Wilson. — Appellant was not entitled to recover, because, by the sales under the deed of trust which his father executed, the title to the land in controversy passed to Miles, and through him to Ludtke, with whom Wilson partitioned. Rogers v. Watson, 81 Tex. 403 ; Goldfrank v. Young, 64 Tex. 433 ; Fievel v. Zuber, 67 Tex. 278 . Appellant expressly alleged in his petition, that Jas. T.D. Wilson owned one-half of lot 15, and having gone to trial on that allegation, he will not be allowed to claim that Wilson should have any less than his half. The part of lot 15, set apart to Wilson in his partition with Ludtke, belongs to Wilson in fee simple, and the appellant has no interest in it. Geo. H. Breaker, for defendant in error. — The death of W.P. Harris revoked the power of sale contained in the deed of trust from him to Ennis and others, as trustees, and Ennis had no power of sale at either of the times when he sold the land in controversy. Robertson v. Paul, 16 Tex. 472 ; Lindberg v. Finks, 7 Texas Civ. App. 391[ 7 Tex. Civ. App. 391 ]; Brackenridge v. Cobb, 85 Tex. 448 ; McLane v. Paschal, 47 Tex. 365 ; Peak v. Brinson, 71 Tex. 310 [ 71 Tex. 310 ]; Black v. Rockmore, 50 Tex. 88 . When a claim is barred by a failure to present it to the administrator, it is barred against the heirs as well as the administrator, notwithstanding its payment was secured by a lien upon the lands, for with us administration is had as well of real as of personal property. Gaston v. Boyd, 52 Tex. 282 . At neither of the sales made by the trustee, Ennis, was any money paid by the bidder; the purchasers were, or claimed to be, the beneficiaries in the deed of trust and holders of the debt secured thereby and the amounts of their bids were simply credited on the debt, and they cannot, therefore, require the plaintiff in this cause, the heir of W.P. Harris, to pay them either the original amount of indebtedness or the amount of their bids before he can recover the land of them sold at said void sales. Neither the appellant nor those through whom he claimed title were made a party to the suit of partition between Wilson and Ludtke, and Ludtke's title by limitation was not perfect at the time when the decree was rendered in that cause, and the plaintiff, Harris, is therefore not bound by that decree and it is void as to him; and the defendant, Ludtke, having acquired title to the west half of lot 15 by limitation since that decree, the plaintiff, Harris, is still entitled to his undivided half of the other half, the east half of said lot 15, which was set aside in that decree to Wilson, and judgment should therefore have been rendered in this cause for Harris against Wilson for an undivided half of the east half of said lot 15.