Gunter v. Fox

Citations

• 51 Tex. 383

Syllabus

<p>Parties—Probate matters—Administration.—Suit was brought against A in the District Court of Buslc county by B, an administrator, to recover land claimed by him as the property of the estate of his intestate, at the November Term, 1857, which land had been patented to intestate. At the same term judgment was rendered for A for the land, on the written agreement filed by the administrator and signed by him, to the effect that the land certificate upon wmich the patent issued was the property of A. The heirs were not made parties. In a subsequent suit, brought by those claiming under A, and against a party in possession under deeds from the heirs : Held—</p> <p>1. That under the laws then in force, (Probate Act of 1848 and Act of 1846, Paschal’s Dig., arts. 1373, 1447,) the heirs were not necessary parties to the first suit.</p> <p>2. Barrett v. Barrett, 31 Tex., 344, overruled, in so far as it conflicts with above.</p> <p>3. Thompson v. Duncan, 1 Tex., 488; Howard v. Bepublic, 2 Tex., 312; and Graham v. Vining, 2 Tex., 433, approved.</p> <p>4. In a case of willful neglect or fraudulent combination on the part of the administrator, the heirs had a right to sue for the protection of their interest.</p> <p>5. Under the probate act of 1870, the heirs were necessary, parties to a suit involving title to land.</p> <p>6. The judgment of the District Court of Busk county was binding on the heirs.</p> <p>7. If there was error in the judgment of the District Court of Busk county, it could not be set up in a collateral proceeding.</p>