The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1896-12-23

vey by deed wherein she is not Joined by
her husband. nevertheless the deed and its
subsequent recording by the purchaser
would pass title by estoppel This would
virtually remove the disability Of cover
turc. Such a rule has never been recog-
nized in this State
2. We have many times held that a bona
fide purchaser for value from the holder
OF the legal title who has capacity to con-.
tract, will be protected against the undis-
closed equity OF another in the thing con-
veyed. But the proposition here asserted
Is that bona fde purchaser for value
from the holder OF the legal title who has
no capacity to contract, will be perfected
against tho subsequent claims of such
vendor or his heirs. seeking to avoid the
binding force OF such contract by reason of
such want Of capacity, on the ground that
such purchaser had no notice of such want
Of capacity, We know of no instance in
which such protection has ever been ex-
tended. Even under the rules of the law
merchant, which manifests so much solc-
itude for the protection Of bona fide hold
er for value of negotiable paper such pro.
lection is not afforded. tDan. on Neg ms,
Secs. SOC and 500 Reversed and rcmanded.
Opinion by Denman. j.
I. A. MINTER EFT AL vs.. s. b. BEN
NETT, administrator, EFT AL; certified
question in a case from Wichita county,
Second district-Answored in favor of
appellants.
Jerry J. Bennett died int S ate in Wichita
county on August I, 1894. and lstt surviving
him his wife. Jessie Bennett. his father,
jerry Bennett. and five brothers and SIS
ters. He left no children. At the date OF
his death he owned four tracts of land In
Wichita county. There was vendors lier
against this land to secure the payment
Of a balance due for the purchase price
He also owned n one-half interest in GER
tain cattle then in the liidian Territory,
which interest was sold by his surviving
partner soon after the death of Bennett
and the proceeds, amounting to $4,000,
brought into this State. Subsequently to
this s. II. Bennett was duly appointed adj
ministrator OF the estate.
On April ~, 1898, the administrator made
Application TO the county court for an order
10 sell certain real estate for the purpose
OF paying the debts therein mentioned.
which constituted vendors liens upon said
lands At this date the administrator had
on hand. in addition to The lands mention
ed. personal property aud cash to the
amount OF $4,000. outside the funds in the
hands Of the administrator derived from
tho sale OF the cattle in The Indian Terri
tory there was no personal property in
his hands out Of which he could raise
money to pay OFF said debts or any part
tEereof. The application for the order TO
sell the land was contested by the father
and brothers and sisters Of deceased. and
approved by the widow. The order was is
sued. after trial in the county court. and
upon appeal to the district court and n
trial de novo, the same order was made
Question did the application OF the
administrator for the sale OF the land ana
tho proof show any necessity for such sllo?
l. Under the common law, II the deceased
was not personally liable to tho n,n-t
gage or other lien holder for the debt 60
cured upon the land. then the personal
property could not be applied to its salts
faction. But If a person died and left land
iucumbered for debt for which he was
personally liable, then the Personal estate
OF such decodent was linhs as the prlu
airy fund to discharge the debt s., secured
and the heir or devisee who received the
land from the deceased would have tho
right TO insist upon the application OF the
personal property to its nsvment
To bring case vi h;V this rule. It was
not necessary that tic paramount title 10
the land Should be in the vende,. II was
sufficient IL the contract was such tina.
the vendee could be compelled to take
the land
In our opinion there is nothing in our
statutes which provides a rule different
from that of the COMMON law in relation
10 the relative rights OF the parties who
under the circumstances Of this ease re-
ceive the estate Ct mo deceased olther Inv
VIII or inheritance. We conclude Therefore
mat tho rules of the common law are In
force IN this S,lte as % 'as fights of tho
"a, 'hs lhNol ed N ths isr.linr submitted
= We do not think that The fact. that
ft1. . ~ a.