administrator of estate not authorized to bind unnamed heirs, despite recitation in contract that administrator acted-“for myself and the heirs to the estate of the aforesaid Mary Owens”
How later courts described this case
- administrator of estate not authorized to bind unnamed heirs, despite recitation in contract that administrator acted-“for myself and the heirs to the estate of the aforesaid Mary Owens”
Written by the judges who cited it.
The opinion
On Motion for Rehearing.
.Appellant, in a motion for rehearing, has pointed out that the uncontradicted evidence in the record shows that one of the vendors of appellant, Frederick Miller, who owned a 5/224 interest in the land in controversy, was a minor up to the time of his conveyance to appellant in 1912, the year preceding the filing of this suit. ' Such being the fact, our holding that the appellees, House, Hamblen, and Brown, have title by limitation to the 985 acres of land in controversy claimed by them, is erroneous, and our former judgment should be modified to the extent of rendering judgment for appellant for an undivided 5/224 of said 985-acre tract. This judgment in favor of appellant carries with it the interest above designated in the oil taken from the land by the defendant oil companies, and, under an agreement of the parties, requires a remanding of the cause to the district court for the purpose of having that court determine the amount and value of the oil taken from the land.
The other grounds for rehearing urged in the motion are without merit.
We think the finding of the trial court upon the issue of the possession of House’s tenants, set out in our original opinion, was clearly intended as a finding that these tenants were in possession of the 985-aere tract of land, and that the evidence supports such finding. The finding would have no bearing upon the issue before the court unless it referred to the 985-acre tract, and if it is not given this meaning we must assume that in answer to appellees’ request for a finding upon th.e issue the court made a vain and useless finding. The finding was not so considered by any of the parties to the litigation until appellant’s motion for rehearing was filed.
As before said, we think the evidence justifies the finding that at all times during the 10 years next preceding the filing of this suit some one or more of the tenants mentioned in the court’s findings was living on the 985 acres of land and holding possession thereof under the agreement with House, as found by the jury. It was not necessary for the establishment of the plea of limitation that all of said tenants should have been on the land during all of the 10 years. A further examination of the record discloses that the defendants’ plea of 5 years’ limitation should be sustained.
The undisputed evidence shows that all taxes on this land were paid by the defendants from the year 1885 up to the time of the trial. The dates of these payments are not shown, but it was shown by the tax collector of Harris county that the delinquent tax records of the county, which extended back to the j'ear 1885, do not show that this land was ever listed for delinquent ta'xes. It further appears that the records of the collector’s office do not show the dates of the payment of taxes.
We think the reasonable inference from this evidence is that the taxes were paid when due, and in the absence of any evidence to the contrary, is sufficient to sustain the finding that the taxes were so paid.
This finding disposes of appellant’s contention that she is entitled to recover the 5/224 interest owned by lizzie Iitzler and conveyed to appellant in 1912, on the ground that such interest was protected against the running of the statute of limitation by the minority of her grantor. The evidence shows that Lizzie Litzler was born on April 14, 1885, and therefore became 21 years of age on April 14, 1906, which was more than 5 years before the filing of this suit.
It follows from what we have said that the motion for rehearing should be refused, except as to the Frederick Miller interest, for which judgment should be.here rendered for appellant, and the cause remanded to the trial court for a hearing only on the question of value of the oil taken from the land, and it is so ordered.