Cornett v. Williams

ERROR to the Circuit Court for the Western District of Texas, in which court Henry Williams brought trespass to try title against one Cornett, to settle the question of ownership of a certain league of land in Bastrop County, in the said State, which had formerly belonged to Samuel Williams. The plaintiff claimed under a sale made by an administrator of the estate of the said Samuel, through the proper court, for payment of debt; the defendant through deeds from his heirs at law. The more particular case was thus:

Samuel Williams, of the said Bastrop County, and engaged in business there, having become indebted to his brother Henry, resident in Baltimore, Maryland, the said brother brought suit against him, and on the 20th June, 1850, obtained a judgment against him in the District Court of the United States in Texas for $26,736; and on the 12th July, 1858, to keep alive the evidences of the debt, brought a second suit on this judgment so obtained, and recovered judgment on it for $43,936. These facts were testified to by W. B. Ballinger, Esq., a member of the bar of Texas of high standing; his 'office registry' being produced as the evidence of the dates and amounts of the two judgments; the judicial records, as hereafter mentioned, having themselves been destroyed.

Soon after the entry of the second judgment Samuel Williams died, leaving this league of land, and some other lands; and not long afterwards-about the year 1859-Henry being in Texas, applied to Mr. Ballinger for counsel as to what further steps, if any, he had best follow to secure his debt against the estate of his brother now lately deceased. Mr. Ballinger told him to get a certified copy of the judgment, make affidavit to it, and present it to the administrators of the estate of Samuel Williams; and supposed, as he testified, that he would do this.

This advice of Mr. Ballinger was founded apparently on what seems to be the law of Texas, under which any claim against the estate of a deceased person, in order to be ranked as a just debt against it, must be duly sworn to and presented to the administrator for allowance, and to the chief justice (who is the probate judge) for approval.

It did not appear that Mr. Ballinger over saw this certified copy, such as he had directed Henry Williams to get and present; but another witness (F. W. Chandler), a member of the bar, testified that he had had in his possession such a copy of the judgment; that J. H. Williams (the son of Henry Williams) had made several copies of it in his presence; and that the original (that is to say, the copy officially certified) had been lost in the mail in crossing Cummins's Creek. One of the copies thus made was sent to Mr. Ballinger; but Mr. Ballinger could not say that the copy was accurate, and noted that the amount found due by the clerk and that for which the judgment was given varied; Mr. Ballinger's own memorandum, as found in his office register, agreeing in amount and date with the latter. The copy thus sent to Mr. Ballinger, and which was received in evidence under objection, set forth that the clerk of the court in which the judgment was had, had assessed the damages at $43,966.34; and that it was, therefore, considered by the court that the plaintiff recover of the defendant $43,936.34.

In 1861 the civil war broke out, lasting till the spring of 1865. In 1862 all the original records of the Federal courts in Texas were burned.

Early in the war, J. H. Williams, a son of Henry, already mentioned as of Baltimore, went to Texas, and with his cousin H. H. Williams, a son of Samuel, bought out the right of the other heirs of Samuel to this league of land, and went on it to live. Having done this the two cousins formed partnership, built a cloth factory, and made a contract with a the Confederate government to supply to it military cloth for the Confederate troops. J. H. Williams stated in testimony that he was at the time aware of the incumbrance of his father's judgment on the land, but considered the estate of his uncle so wealthy 'that any idea of the land being needed to pay a debt of the estate never occurred to him but as a possibility too remote to be worth consideration.'

While the cousins, J. H. and W. H. Williams, were engaged in manufacturing military cloths for the Confederate troops, under their contract, already mentioned, with the Confederate government, a certain Cornett appeared, in October, 1863, in Texas, with a large number of slaves, some mules, and a wagon. Cornett had been a resident and a slaveholder in Missouri, disaffected to the Federal government; and the testimony tended to show that in the autumn of 1861, that State being in a very disturbed condition, owing to the war, and the government troops gradually driving out those of the Confederate States, a son of Cornett said to his father that the Federal army was approaching; that if they did not remove their slaves soon they would lose them all; that thereupon Cornett got his slaves together, and handcuffing or tying with strings some who hid themselves and did not want to go, set off for the South, and after about five weeks of forced journeyings, following the Confederate troops night and day, arrived in Texas; that he hired some of his slaves out for short times, sold certain ones, and in the autumn of 1863 sold all the rest (the bulk of them), and the mules and wagon, to the cousins Williams, they having made the purchase, as one of them testified, 'for the purpose of enabling us to comply with our contract with the Confederate government;' a thing,' continued the witness, 'which the said Cornett knew at the time of our purchase and must have known before, it having been matter of common notoriety; and he having further known it from our own statements made to him at the time.'

By way of payment for the negroes, mules and wagon, the cousins Williams executed, in February, 1864(though the sale was in the autumn of 1863), their note to Cornett for $9600 (the $9000 having been the price of the negroes and the $600 the price of the mules and wagon), and to secure the payment of the note conveyed the league of land that they had bought from the heirs of Samuel Williams to one Wildbahn, in trust to secure their note to Cornett, and with power in the trustee to sell if the note was not paid.

In the spring of 1865 the supremacy of the Federal arms became complete; slavery was abolished, and the slaves bought by the cousins Williams of no more value to them.

Henry Williams, the father of J. H. Williams, who was still alive and had been during the war at the North, constituted, in 1865, his son, J. H. Williams, yet in Texas, his general agent there; and peace being now restored and intercourse between all parts of the country, the son (who, as already mentioned, had with his cousin mortgaged the league to Cornett, to secure the purchase-money of the slaves), acting as his father's agent, at the January Term, 1866, applied through counsel, Mr. Mott, to the County Court of Galveston, for an order that the administrator of Samuel Williams be cited to appear and show cause why 'he should not make application to the court for an order to sell enough of the property of said estate to pay a judgment obtained by the said Henry Williams against the said Samuel, to the amount of $40,000; which said judgment was allowed and approved as a valid claim against said estate, in October, 1859, with eight per cent. interest per annum,' &c.

The application thus made to the court was under and in pursuance with the 1315th article of Paschal's Digest, which declares that when an administrator shall neglect to apply for an order to sell sufficient property to pay the claims against the estate that have been allowed and approved, or established by suit, such executor shall be required by the chief justice, on the application of any creditor whose claim has been allowed and approved, or established by suit, to present a statement, &c.; and on proof that a necessity exists for a sale to pay debts, &c., it shall be the duty of the chief justice to order such sale to be made, having jurisdiction of the case by application made.

The administrator appeared at the same term, and, answering, admitted it to be true that the said Henry, on the 28th of June, 1850, did recover a judgment in the United States District Court at Galveston, against the decedent, for $26,736; that it was not paid at the death of the decedent; that it was presented for allowance against the estate with the usual affidavit and allowed; that he could not say whether it was approved by the chief justice of Galveston County; that it had never been paid, and that the reason he had taken no measures to pay it was that the plaintiff had told him that, being against his brother, he did not intend to enforce it. The court thereupon, at the same term, made an order as follows:

'On this day came on to be heard in this cause the motion of Henry Williams, by his agent, J. H. Williams, asking that the administrator be required to sell sufficient property of the estate to pay a certain judgment obtained by the said Henry in the United States District Court, on the 28th day of June, A.D. 1850, for the sum of $26,736, with interest from date of rendition; and it appearing to the court that this claim has been duly allowed, and that the administrator has no funds in hand whatever to pay the same, it is ordered that he make sale of sufficient property in pursuance of the prayer of the motion. And the administrator having designated the following piece of property, it is ordered that he shall make public sale of one league of land, situated,' &c.

The premises in controversy (being the same that the son had with his cousin conveyed to Cornett) were then described, the mode and time of advertising, and the place and terms of the sale were prescribed, and the administrator was directed 'to make due report of his action in the premises to the court.' On the 15th of March, 1866, the administrator reported that, pursuant to the order of the court, after due notice according to law, he had offered the premises for sale at public auction, at the time and place required by law, and that they were struck off and sold to Henry Williams, for the sum of $60,000, on a credit of twelve months, secured by a vendor's lien; that Williams was the highest and best bidder, and that the price was a reasonable one.

At the March Term the court confirmed the report and ordered the administrator to make a deed to the purchaser upon his complying with the terms of the sale. On the 15th of April, 1866, the administrator gave a receipt to the purchaser for $60,600, being the amount of the purchase-money with ten per cent. interest, and by the same instrument released his vendor's lien. On the same day he executed a deed of conveyance to the said Henry. It recited all the proceedings touching the sale upon which it was founded.

On the 2d of January, 1868, the administrator executed to the said Henry another deed for the same premises. It recited more fully the proceedings relative to the sale, and set out that there were certain clerical errors of dates in the former deed, and that the second deed was made to correct them.

The consel (one Mott), who, as counsel, attended to getting this order of sale, and was examined as a witness for the plaintiff, was asked whether in getting the order he had before him 'the claim' of Henry Williams, on which the order was based. He replied:

'I have not before me the claim alluded to. I presume it is among the papers in the matter of the administration of Samuel Williams, deceased, on file in the county clerk's office, in Galveston County.'

He testified further, in reply to other interrogatories:

'The administrator contested my application for order of sale, and the matter was referred to the court upon the proof. The matter was one of minor importance, as far as I was concerned, and my recollection of the facts is not clear. My impression is that the proof was mostly oral. I proved by one or two witnesses that judgment had been obtained in the United States District Court by Henry Williams against Samuel Williams, and also proved the destruction of the United States court records by fire. And upon the proof the chief justice adjudicated the matter and gave me the order of sale.'