Where, in a direct proceeding, a probate sale is attacked for fraud, and the record, unexplained,
contains intrinsic evidence of the fraud, and no explanation is offered, the rule that
presumptions will be indulged in favor of what does not appear is inapplicable. That rule applies,
ordinarily, to cases where judgments are attacked collaterally.
*1 APPEAL from Harris. Tried below before the Hon. James Masterson.
This case rivals that of Jarndyce v. Jarndyce, at least in its duration. Its purpose was
to cancel a fraudulent sale made in 1850, under proceedings in probate begun in 1848,
which were removed by certiorari to the district court in October, 1857; there the case
lingered until August, 1873, when, on no other evidence than such as an inspection of the
probate record afforded, a judgment was rendered declaring, fraudulent, the sale of a league
of land.
That judgment was brought up by writ of error to the supreme court in 1875.
The original parties died during the litigation, and the judgment now rendered is for the
benefit of the descendants of the heir who charged fraud in the conversion of his ancestor's
estate.
An application was made to the judge of the district court in Harris county for a writ of
certiorari to the county court of that county to bring up the record of the proceedings
had in that court in the succession of A. L. Kuykendall, deceased. The petition was
filed October 28, 1857, by John M. Kuykendall, the ancestor of appellees. He alleged
that he was the only surviving child of Abraham L. and Ann Eliza Kuykendall, who had formerly
resided in Harris county; that his mother died in 1840 or 1841, and his father in 1845, in that
county; that neither of them owed any debts; that his father owned at the time of his death a
league of land in Bexar county, which was his headright and was community property, a lot in
the town of Richmond, Fort Bend county, and a judgment against one D. L. Woods for $180;
that his father's league certificate had been located and surveyed and the field notes deposited
in the land office before his death, but the patent had not issued. That some time after the
death of his father, John H. Herndon (one of the defendants), for the purpose of defrauding
petitioner (who was then a small boy) of his property, took the patent out of the land office
and had kept it ever since.
It was charged that Herndon, for the purpose of carrying, into effect his fraudulent intent,
induced James R. Shipman (another defendant), in November, 1848, to apply to the county court
of Harris county for letters of administration upon the estate of A. L. Kuykendall, upon the
false pretense that Kuykendall had died indebted and that he, Shipman, was a creditor. That
Shipman was, by that court, appointed administrator at the November term, 1848, and on the
31st of January, 1849, filed an inventory of the property of the estate, and had the league
of land appraised at $428, when it was worth $6,000; that at the February term, 1849, Shipman,
without any claims against the estate having been presented to him for allowance, applied for
and obtained an order for the sale of all the property of the estate; that nothing was done
under that order, nor was anything else done in the administration until the January term,
1850, when John H. Herndon appeared before the court as the attorney of Shipman and consented
to his removal from the administration; that Shipman never afterwards presented any claim
against the estate; that at the August term, 1850, Herndon, for the purpose of effecting his
fraudulent designs, induced Augustus C. Dawz (another defendant) to apply for letters of
administration; that Dawz was appointed at the August term, filed a copy of the original
inventory, and at the September term, one month afterwards, applied for an order for the
sale of the property of the estate to pay alleged debts, though no claims had been presented
to him and none existed against the estate; that the order of sale was granted at the same
term, and under that order, that Dawz, as administrator, sold the entire property of the
estate to Herndon for the sum of $458; that Herndon had never paid any part of the purchase
money, and that the administration was still open and pending in the county court.
*2 Prayer for writ of certiorari to bring up the whole proceedings of the county court;
for citation to the defendants above named; that the sale be set aside, and for general relief.
The transcript from the county court covers twenty-nine and one-half pages of the record.
It shows, among other things, that at the November term, 1850, Dawz, the administrator,
reported the sale to Herndon as having been made on the 5th of that month, and that, at the
same term, the sale was confirmed by the court. From that time on, the transcript consists
chiefly of continuances, and ineffectual efforts, such as orders, citations and attachments,
to compel the administrator to make his final exhibit and close the administration. In 1857,
in response to a citation, he appeared and said that he had done nothing in the administration
since the sale; that he had sold the property to Herndon on a credit of twelve months; that
Herndon had given his note for the purchase money; that the note was overdue, and he had
written to Herndon to "come down" and pay it, "which he had promised to do, but had failed,
and asks for further time."
At the June term, 1858, in response to another citation, he reported that nothing further
could be done with the estate, as proceedings had been begun in the district court against
himself, Shipman and Herndon.
December 1, 1858, defendant Dawz appeared by attorney in the district court and
answered by a general demurrer, special exception that he was not a necessary or proper party,
and a denial of all the allegations of fraud so far as he was concerned.
On the same day defendant Herndon answered by a general demurrer and special exceptions,
as follows:
1st. That his codefendants, Dawz and Shipman, were not proper parties.
2d. That the allegations of fraud were vague and indefinite.
3d. That it appeared from the petition that the county court of Harris county had
jurisdiction to order the said sale, and that the jurisdiction was exercised according to law.
And further, that he had purchased the property from the administrator in good faith and for
a fair price. He denied all allegations of fraud and all allegations not admitted, and pleaded
"not guilty."
In 1860 defendant Shipman waived service of citation, but filed no answer.
In November, 1860, defendant Herndon amended, and by way of special demurrer set up that
from the petition it appeared that the league of land was the community property of plaintiff's
father and mother; that as to the mother's interest this was an action of trespass to try
title and should have been brought in Medina county, where the land lay. He answered further,
that plaintiff had no interest in the league of land; that plaintiff had sold the league in
December, 1856, to one J. B. Kuykendall for $1,000, and he annexed a copy of the deed
from plaintiff to Kuykendall as an exhibit; that plaintiff had so sold the league of land to
J. B. Kuykendall before the filing of the original petition; that the pretended deed from
J. B. Kuykendall (for the land) to plaintiff was colorable and without consideration, and
was made to enable plaintiff to institute this suit; that under that reconveyance plaintiff
really held the land as a purchaser from J. B. Kuykendall and not as the heir of A. L.
and Ann Eliza Kuykendall, and hence had no right to the proceeding by certiorari; and further,
that J. B. Kuykendall was then more than forty years old, and, if he could have brought the suit
in any case, would be barred by the limitation of two years.
*3 December 3, 1860, plaintiff amended, admitting the sale by him to J. B. Kuykendall,
but alleged a reconveyance by J. B. to him before the filing of the original petition.
The plaintiff died in 1870, and in 1872 his minor children, Eliza, Cynthia Ann, Leona, John
and James W. Kuykendall, by their mother and next friend, Sarah Kuykendall, were made parties
plaintiffs.
April 27, 1872, plaintiffs moved to strike out the various exceptions, demurrers,
etc., of defendant Herndon, for several reasons, as that they were not filed in the due order
of pleading, were not acted on at the time when filed, and were not sworn to. December 13, 1872,
plaintiffs again amended, renewing the charge of fraud and collusion; that Herndon had used the
two administrators for his own purposes; that Shipman had falsely represented that there were
debts against the estate, when there were none; that the inventory filed by Shipman did not show
what was common and what was separate property; that there was no list of claims against the
estate; that there was no allowance set apart for any child or children of deceased; that Shipman,
by the advice of Herndon, his attorney, made no publication of notice; that no claims against
the estate were presented and none existed, as both of them well knew, and there was no
necessity for administration; that Shipman was dismissed by the consent of his attorney,
Herndon, without notice, and without having made any exhibit of the condition of the estate;
that Dawz was illegally appointed administrator; that the petition of Dawz for the sale
gave no sufficient reason for the sale, it merely stating that there were debts against the
estate unpaid, and that he had no means wherewith to discharge the same, except from the sale
of the property; that he made no proof of the existence of said debts, and the previous order
to Shipman was still in force; that Dawz's report of the sale did not show that it was a
public sale; that Herndon never complied, and never intended to comply, with the terms of
the sale; and Dawz did not readvertise, and in fact never did anything in the matter afterwards;
that Herndon was the fraudulent contriver and manager of the whole plan, and the other two
were his willing instruments; and that there was no necessity for continuing the administration
longer, except for the purposes of this suit, as the estate owed no debts.
On the same day, defendant Herndon, amending his former demurrer, alleged that plaintiff,
as a purchaser of the league of land, had no right to the writ of certiorari. He also suggested
a diminution of the record, and prayed for an order to the clerk of the county court to send
up the following account against the estate of A. L. Kuykendall, as having been annexed to
the petition of Shipman for letters of administration, but which was omitted by the clerk,
as follows:
In 1873 P. Tiernan intervened, claiming eight hundred acres of the land, and referred
to his deed as a part of his petition; but there is no such deed in the record, nor any evidence
of his interest in the land. April 4, 1873, F. M. Poland, administrator of A. L. Kuykendall,
appeared and made himself a party.
In August, 1873, the cause was submitted to the court without a jury. The court rendered
judgment setting aside the sale, and vesting title to the property in plaintiffs, and that
the intervenor take nothing. Some days afterwards the court, upon motion of plaintiffs,
amended the judgment so as to omit that part which vested title in plaintiffs.
The defendant Herndon and the intervenor Tiernan brought up the cause by writs of error, the
bond having been approved August 3, 1875. The decree of the court below canceled the deed from
Dawz, administrator, to Herndon, but there is no such deed in the record, nor any evidence of
its existence, except the above, nor is there any evidence that Herndon ever paid the purchase
money. The inspection of the probate proceeding verifies all the allegations of facts stated,
as contradistinguished from the conclusions of fraud charged.
The assignments of error were:
1st and 2d. That the judgment was contrary to the law and the evidence.
... 4th. The court erred in setting aside the orders of sale and confirmation after
jurisdiction had attached to the subject matter, the petition showing indebtedness.
5th. The court erred in rendering judgment for plaintiffs, when it appears of record
that John M. Kuykendall had no such interest as entitled him to the writ of certiorari.
Goldthwaite & Duncan, for appellants.
I. The judgments of courts will not be set aside on mere surmises or suspicions, but
there must be evidence to establish the fraud that does naturally and reasonably tend to that
conclusion. 1 Story's Eq., § 190; 1
Howe on Fraud, 24; Alexander v. Maverick, 18 Tex., 194;
Grassmeyer v. Beeson, 18 Tex.,
765; Kellum v. Smith, 18 Tex., 847.
II. And it must not be legal and technical fraud, but actual and positive fraud--fraud
in fact. Insurance Co. v. Coulter, 3 Pet., 341.
III. Fraud is not to be presumed, but must be proved. Giddings v. Steele, 28 Tex., 758.
The jurisdiction being established, all presumptions must be made in favor of what does not appear.
Tucker v. Harris, 13 Ga., 1; Duval v. McLosky, 1 Ala., 708; Thompson v. Talmie,
2 Pet., 165; Alexander v. Maverick, 18 Tex., 194; Pasch. Dig., vol. 3, § 20,475.
Nothing but the record of the probate court being submitted, no evidence over or beyond that,
and the question being whether the mere absence from the record of the statement of indebtedness
which authorizes a sale of estate property, or whether the presence in the record of a rude,
informal statement of indebtedness or list of claims, indorsed on the back of the petition for
sale of property, is sufficient cause to annul the order of sale and the order of confirmation
of sale. For a more specific application of the principles, the court is referred to the
following cases: Withers v. Patterson, 27 Tex., 496; Menifee v. Hamilton, 32 Tex.,
510; Flanagan v. Pierce, 27 Tex., 78.
W. P. & E. P. Hamblen, for defendant in error.
DELANY, J. COM. APP.
*5 Counsel for plaintiffs in error do not, in their brief, insist upon the fifth assignment
of error, which questions the right of the original plaintiff, John M. Kuykendall, to the writ of
certiorari. The statute in force at that time (Pasch. Dig., art. 480) provided that any person
interested, who might desire to have the proceedings of the county courts pertaining to estates
revised and corrected, might do so by application to the judge of the district court for the writ.
The position taken by counsel for the defendants below was, that the plaintiff, having sold the
league of land before the filing of the suit, was not a person interested in the estate within the
meaning of the statute, even though he may have repurchased the land before suit commenced. For in the
latter case, they maintained he would hold the land, not as the heir of A. L. Kuykendall, but as
a purchaser from J. B. Kuykendall. He was nevertheless a person interested within the meaning of
the statute, as there was other property which he claimed as heir.
Counsel for plaintiffs in error present us with several propositions which we will consider,
without, however, following the order in which they are presented:
1st. "The jurisdiction being established, all presumptions must be made in favor of what does
not appear."
This rule is so well settled as to render its discussion unnecessary; but it is generally applied
to cases in which the action of the court is called in question in some collateral proceeding.
Illustrations of the rule, and of its general application, will be found in the cases of
Alexander v. Maverick, 18 Tex., 179; Burdett v. Silsbee, and ,Dancy v. Stricklinge,
15 Tex., 557. In each of these cases, the sales made by the probate court were collaterally attacked.
The purchasers had bought in good faith, and were strangers to the proceedings in the probate court.
They had bought relying upon the judgment of a court of competent jurisdiction, and to protect their
interests every reasonable presumption would be indulged in favor of the correctness of the court's
action.
In Dancy v. Stricklinge, referred to above, Justice Wheeler, after referring to certain
liberal presumptions which were made in the case of Townsend v. Munger, 9 Tex., 300, says:
"It would not be going further to indulge a like presumption in the present case, when the authority
of the administrator is thus collaterally brought in question, for the purpose of invalidating the
title of a bona fide purchaser in a proceeding in which the administrator who might have had it in his
power, had his authority been questioned in proper time, cannot be called in to show his authority to
act in the premises."
In the case of Burdett v. Silsbee, 15 Tex., 617, the same learned judge remarks as follows:
"If this were a suit or proceeding in which the authority of the administrator was directly instead
of being collaterally drawn in question, it might be subjected to a severer scrutiny. But the case
is different when his authority is thus drawn in question in a collateral action for the purpose of
invalidating the title of a purchaser at the administrator's sale. When sales have been thus made,
and confirmed by the judgment of a court of competent jurisdiction, it is well settled that the
judgment, unless impeached for fraud, cannot be drawn in question in a collateral action."
*6 In the case now before us, the proceeding was not collateral but direct.
The purchaser at the sale was not a stranger, but was the attorney of one of the administrators,
and was familiar with all the facts. He and the two administrators were brought before the court.
Every opportunity for explanation was given. The charge was that the purchase was fraudulent, and
that the purchaser had used the administrators as his instruments in perpetrating the fraud.
Upon this branch of the case counsel present this proposition: "The judgments of courts will
not be set aside on mere surmises or suspicions; but there must be evidence to establish the fraud
that does naturally and reasonably tend to that conclusion." 1 Story's Eq., sec. 190.
The correctness of this general proposition will not be questioned. But in the present case it was
not to be expected that the plaintiff should produce full and ample proof. His case was grounded
upon negative allegations. He averred that the estate of A. L. Kuykendall owed no debts;
that there was no necessity for administration, and that the pretended debts were Fabricated
by the defendants in order to attain a sale of the property. These negative allegations he
was required to support only by prima facie proof. 1 Greenl. Ev., sec. 78.
This he did when he brought up the proceedings of the county court and showed by them that
none of the defendants had in fact ever recognized the existence of any particular claim against
the estate. Under the circumstances, we should naturally expect that the defendants would
promptly rebut this prima facie case made by the plaintiffs. But the defendant Shipman,
the only one who ever pretended to have any claim against the estate, does not even answer.
The defendant Dawz denies all the allegations of fraud so far as he is concerned.
The defendant Herndon, though answering at large on the law of the case, merely states,
upon the facts, that the property was sold by the administrator, Dawz, and that he had
bought it in good faith and for a fair price; but he does not pretend that he had ever paid for
it, or that he ever had any intention to do so. The defendants do not allege in their pleadings,
or attempt to show upon the trial, that there were any real claims against the estate. In fact, the
whole proceeding in the probate court has the appearance of a private speculation at the expense
of the estate, and the guiding hand of the defendant Herndon is visible throughout.
The facts established in this case resemble very much the facts alleged in the case of
Finch v. Edmonson, 9 Tex., 504; and in the case of Alexander v. Maverick, 18 Tex., 194,
Justice Wheeler says that in Finch v. Edmonson the sale was declared void on account of
fraud. So, we think, should the sale be in the present case. The judgment should be affirmed.
*7 AFFIRMED.