The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1896-12-24

died, leaving surviving her a husband
| and three minor children.
/ All of the deeds mentioned above were
duly recorded in the county where the
land was situated. There was no evil
derce of any deception or mlsrepresen-
tation on the part of Nora Daniels III
executing said deed other than sucn as
might be deduced from the fact of It's
execution and delivery through a thlru
person to whom the money was pald' =,
This suit was brought by Rowena M,
Mason against the husband and children
liof Nora Daniels to remove the cloud sup
posed to be cast upon plaintiffs title oy
the assertion of claim to SAID land
through said deed to Nora Daniels upon
the supposition that the deed executed
by her did not divest her of title. Deteh,
dants answered by a special plea ana
prayed that their title be decreed perfect.
There was judgment for plaintlf IN
the trial court, which was ain RI oh
appeal to the court of civil appeals.
First-We are of the opinion that the
trial court erred in it's first conclusion OF
law to the effect that the heirs of Nora
Daniels were estopped. She did nothing
more than execute and divide the deed
and probably receive the purchase
money. .'t' .. t. '"r
If the mere execution of deed and
the receipt of the purchase. money con-
sttute an estoppel, then in all cases,
though married woman has no capacity
to convey by deed wherein she is not
Joined by her husband, nevertheless the
deed and its subsequent recording by the
purchaser would pass title by estoppei.
This would virtually remove the disable
| ity of coverture. Such a rule has never
been recognized in this state. 10
Second-We have many times held that
bona fide purchaser for value, from the
holder of the legal title who has capacity
to contract, will be protected against the
undisclosed equity of another in the thlng
conveyed. But the proposition here as
scented is. that bona fide purchaser Tor
value from the holder Of the legal title
who has no capacity to contract, VIII De
protected against subsequent claims OF
such vendor or his heirs, seeking to av0id
the binding force of such contract py
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 pro-
lection has ever been extended. Even
under the rules of the law merchant
which manifest so much sOlicitude for
the protection of bona fide holder Tor
value of negotiable paper, such pr4tec-
ton is not afforded. Dan. on Neg. ms,
sections SUO anu ootJ
Reversed and remanded
Opinion by Denman, j..
II. A. Minter ct al. vs. S. 3. Burnett,
administrator, ct al; certified questions
in n case from Wichita county, Second
district. Answered in favor Of appel
lants: :.
Jerry ]. Burnett died intestate in
Wichita county on August Z, 1874, ana
left surviving him his wife, Jesse Bur
nett, his father Jerry Burnett ana hSe
brothers and sisters. He left no children.
AT the date of his death he owned four
tracts of land in Wichita county! There
was a vendors lien against this land to
secure the payment of the balance due for
the purchase price. He also owned q
one-half interest in certain cattle then in
the Indian Territory, which interest was
sold by his surviving partner soon after
the death of Burnett and the proceeds,
amounting to $4,000, brought :, into p TINS
state. Subsequently to this, ). b. Bur
nett was duly appointed administrator Of
On April, %, 1896, the administrator
made application to the county court
for an order to sell certain real estate
for the purpose Of paying the debts
therein mentioned, which constituted ven
doris liens upon said lands: At this date
the administrator had on hand, in add,
ton to the land mentioned, personal
property and cash to the amount OF
$4,000. Outside the funds in the hands
of the administrator derived from the
sale of the cattle in the Indian Territory,
there was no personal property IN ms
hands out of which he could raise money
to pay off said debts or any part there,
of. 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
issued, after trial in the county court,
and upon appeal to the district court and
trial de noyo the same order was
made. ..
Question 1 "Did the application of the
administrator for the sale of the land and
the proof show any necessity for such
snlef" 49, - ,.[.I. : :,
| First-Iynder the common law. If the
deceased was not personally liable to the
mortgage or other lien holder for the
daht secured mon the land. then the per,
L