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in the constitution, or he must prove compli- the cause to this court, assigning as error ance with the constitutional provision as to that the court of civil appeals erred in holdthe payment thereof.
ing that the general demurrer should have Error to court of civil appeals of Third su- been sustained, and alleging, as ground of preme judicial district.
jurisdiction in this court, under the act of Action by J. H. McNeill against the City the legislature approved May 6, 1895, “that of Waco on a contract for the construction the decision of the court of civil appeals of certain improvements. A judgment in practically settles the case.” favor of plaintiff was reversed by the court This is not a suit against a natural person of civil appeals (29 S. W. 1109), and plaintiff or private corporation, but it is a suit brings error. Affirmed.
against a city, one of the municipal corpora
tions referred to in article 11 of our constiDyer & Dyer and Clark & Bolinger, for
tution. This article provides that "no debt plaintiff in error. James A. Harrison, for
shall ever be created by any city unless at defendant in error.'
the same time provision be made to assess
and collect annually a sufficient sum to pay DENMAN, J. Plaintiff in error filed his the interest thereon and create a sinking petition in the court below, alleging, in sub- fund of at least two per cent. thereon," and stance, that on the 7th day of March, 1883, “no debt for any purpose shall ever be inhe entered into a contract with the city of curred in any manner by any city or county Waco, whereby he agreed to furnish all ma- unless provision is made, at the time of terial, and build for said city, for the fire creating the same, for levying and collecting protection of the same, seven underground a sufficient tax to pay interest thereon and cisterns, of brick and cement mortar, each provide at least two per cent. as a sinking cistern to be in the form of a cylinder laid fund." These provisions in no uncertain on its side, 30 feet long and 20 feet in di- language, without excepting any class of ameter, the walls to be 8 inches in thick
cases, imperatively prohibit any city's “creness, and the top to come to a point 2 feet ating" or "incurring" a "debt for any purbelow the street grade, "with a two-foot
," and "in any manner," without at the neck, in diameter, coming to the grade same time making the required "provision." point, and to be covered with an iron cover Therefore, the attempted "creation" or "inthree-fourths inches thick," the same to be curring" of a “debt," for any conceivable completed on or before the 1st day of July, purpose, and in any conceivable manner, 1888; that in consideration of the building without making the “provision," is contrary of said seven cisterns, according to said con- to the express prohibition of the constitution, tract, the city of Waco agreed, promised, and void; and it is wholly immaterial and obligated itself to pay to him for the whether the consideration or "purpose" of same the sum of $925 for each cistern, in the transaction be properly classed as an cash, upon its completion; that pursuant to item of ordinary or current expense, or and in compliance with the terms of said otherwise, and whether the "debt" be evicontract, he built and constructed four of denced by an ordinary verbal or written consaid cisterns, and thereupon tendered the tract, a note, or a bond. same to said city, and demanded the stipu- Since the inhibition against the "creation" lated compensation, whereupon, without any or "incurring" of a "debt," without the "projust cause, the city refused to accept same, vision," is universal, it is of vital importance or to pay therefor as agreed, and wrongfully to determine the meaning of the word "debt," refused to allow him to construct the three as used in the constitution. The word has remaining cisterns, although he was ready no fixed, legal signification, as has the word and willing so to do; that if he had been "contract," but is used in different statutes permitted to construct the three remaining and constitutions in senses varying from a cisterns he would have made a profit there- very restricted to a very general one. Its on of $200 on each cistern, total, $600; that meaning, therefore, in any particular statute by reason of such facts the city became and or constitution, is to be determined by conis liable to him for the agreed price of said struction, and decisions upon one statute or four cisterns, and for the lost profit on the constitution often tend to confuse rather other three,-for which judgment Was than aid in ascertaining its signification in sought against the city. To this petition the another relating to an entirely different subcity in the court below urged a general de- ject. These constitutional provisions were murrer, which was overruled, and on the intended as restraints upon the power of trial verdict and judgment was rendered in municipal corporations to contract that class favor of plaintiff in error for the sum of of pecuniary liabilities not to be satisfied out $3,118.90, for building three cisterns, from of the current revenues, or other funds withwhich judgment the city appealed to the in their control lawfully applicable thereto, court of civil appeals, where the judgment and which would therefore, at the date of of the court below was reversed, and the the contract, be an unprovided-for liability, cause remanded, on the ground that the and properly included within the general court below erred in overruling the general meaning of the word “debt.” They have no demurrer. Plaintiff in error has brought application, however, to that class of pe-. cuniary obligations in good faith intended to courthouse, or city hall, whereby the corpobe, and lawfully, payable out of either the ration undertakes to pay therefor generally, current revenues for the year of the contract there being no fund within its immediate or any other fund within the immediate con- control lawfully applicable thereto out of trol of the corporation. Such obligations which, at the time of the contract, it was being provided for at the time of their crea- contemplated by the parties thereto that the tion, so that in the due course of the transac- same should be paid, would be the creation tions they are to be satisfied by the provi- or incurring of a debt, within the meaning of sions made, it would be an unreasonable the constitution. construction of the constitution to hold them We conclude that the word "debt," as used debts, within its meaning, so as to require in the constitutional provisions above quoted, the levy of a wholly unnecessary tax upon means any pecuniary obligation imposed by the citizen. Thus, a warrant drawn against contract, except such as were, at the date of the current revenues of the year for one of the contract, within the lawful and reasonathe ordinary expenses of the corporation for ble contemplation of the parties, to be satis-. such year, when all the claims for ordinary fied out of the current revenues for the year, expenses for that year do not exceed such or out of some fund then within the immedirevenues, or a contract entered into for the ate control of the corporation. City of Cormaking of any public improvement author- pus Christi v. Woessner, 58 Tex. 465; Terrell ized by law, e. g. the building of a courthouse v. Dessaint, 71 Tex. 770, 9 S. W. 593; Appeal or jail, and obligating the corporation to pay of City of Erie, 91 Pa. St. 398; Prince v. therefor, there being funds within its imme- City of Quincy, 105 Ill. 138. Prima facie, diate control lawfully applicable thereto suf- every pecuniary obligation attempted to be ficient, and in good faith contemplated by created by contract is a debt, within the the contracting parties to be used in pay- meaning of the constitutional provisions ment thereof when due, are not debts, with- above, and a party attempting to recover in the meaning of such constitutional provi- against the city thereon must allege the facts sions requiring the making of provision for showing a compliance with the constitution the interest and sinking fund. The payment and statutes necessary to bind the city, or of such claims being lawfully provided for, must allege such facts as bring the particular in such way that their satisfaction in the claim within the exception above stated in due course of business is reasonably certain, the definition of the word "debt." If it they are, in legal contemplation, so far sat- should appear from the pleadings or the isfied as to be considered as not contemplat- face of the obligation that the subject of the ed by the constitutional provisions, though it contract was clearly a matter of ordinary may result, from some cause not provided expenditure, such as repairing streets or salagainst by the law, such as failure to collect ary of an officer, this would be sufficient to the taxes, robbery, embezzlement, or wrong- bring it within the exception, for the prima ful diversion of the funds, that they are not facie presumption would be that such claim paid from the contemplated sources. Cole was intended to be paid out of the current v. City of Shreveport, 41 La. Ann. 839, 6 revenues annually collected for payment of South. 688; City of Valparaiso v. Gardner, such claims, and it would not be presumed 97 Ind. 1. On the other hand, an obligation the city had attempted to make contracts binding the city to pay for a matter relating in excess of its revenues for the year; but to its ordinary expenses, such payment being, where, as in the case at bar, the subject of in contemplation of the parties, not intended the contract is not one which the court can to be made out of the current funds of the say, as a matter of law, is an item of ordi. year in which the expenditure is made, or nary expenditure, the petition, in order to any funds on hand lawfully applicable there- bring it within the exception, must allege to, would be a debt, within the meaning of some additional fact, such as that there was, the constitution. Sackett v. City of New Al- at the date of the contract, a fund in the bany, 88 Ind. 473; French v. Burlington, 42 treasury, legally applicable thereto, out of Iowa, 614. Thus, in City of Terrell " Des- which the parties contemplated that such saint, 71 Tex. 770, 9 S. W. 593, this court, claim should be paid. Since the petition without passing upon the correctness of the seeks to enforce against the city a pecuniary finding of fact by the court below, "that the obligation arising out of a contract, and alnote was given for current expenses," held leges neither a compliance with said constithat it was void, and reversed and rendered tutional provisions nor any facts bringing the judgment, because the note "matured at the case within the exception above indicatsuch a time as would make it a charge on ed in the definition of the word "debt," we the future resources of the city," there being conclude that the court of civil appeals was no provision made for interest or sinking correct in holding that the general demurrer fund. By parity of reasoning, we think it should have been sustained; and in complifollows that a contract entered into for the ance with the mandate of the statute directconstruction or erection of any public im- ing this court, in the event the decision of provement authorized by law, but not prop- the court of civil appeals is approved in a erly a part of the ordinary expenses of the case brought to this court on the ground corporation, e. g. a system of waterworks, a that the decision of the court of civil ap
peals practically settles the case, to tren
Conclusions of Law. der final judgment accordingly," the judg
The only proposition raised by the assignment of the court below is reversed, and
ments of error that we deem necessary to judgment will be here rendered that plaintiff in error take nothing by his suit, and pay
pass upon is that the proceedings of the
probate court of Grayson county pertainall costs.
ing to the sale of the land in controversy are void, and the deed by the administrator
thereunder is of no force or effect. CRAWFORD et al. v. MCDONALD.
The first contention under this proposition
by appellants is that the land was not suffi(Supreme Court of Texas. Nov. 14, 1895.)
ciently described so as to be identified. The PROBATE COURTS--EXECUTOR'S SALE -VALIDITYCONFIRMATION-COLLATERAL ATTACK.
inventory and appraisement properly de1. Probate courts have general jurisdiction
scribe the land. It was properly described over decedents' estates.
in the deed of trust. The application made 2. In trespass to try title by devisees
to the probate court to sell the land was against a purchaser at a sale by the executor,
based on the debt secured by said deed of an attack on the judgment of a probate court, which had jurisdiction over plaintiff, confirm- trust, which was set up in the application, ing the sale, is collateral.
and the order of sale made by the court 3. A judgment of a probate court confirm
referred to the application. The report of ing a sale of land by an executor cannot be attacked collaterally by evidence outside the rec
sale made by the administrator shows that ord tending to show that the sale was not made he sold block 65, which is defective, in that at the place required by law.
the land is block 65, in 2d Miller's addition 4. A judgment of a probate court confirm
to the town of Denison. The administraing an executor's sale for payment of a debt secured by mortgage is not void for failure to
tor's deed described the land properly, and properly describe the land, where the land was the proof showed that said estate owned properly described in the mortgage and in oth
only one block, numbered 65; from which we er portions of the probate records, including an inventory filed by the executor prior to such
are of opinion that the description of the confirmation.
land is sufficiently definite to be identified. 5. An executor's sale for satisfaction of a
It is well settled that the vagueness of demortgage against the estate, made on petition of the mortgagee, is not rendered void by a direc
scription in an order of sale made by the tion in the order of sale that the sale be made probate court could be cured by reference by "petitioner," instead of by the executor, to the inventory and other matters of record where it appears to have been a clerical mis
pertaining to the administration. Hurley take, and the sale was in fact made by the executor.
V. Barnard, 48 Tex. 83. The application
of sale was made by J. Milligan. The order Error to court of civil appeals of Fifth su
of sale directed "petitioner" to make the preme judicial district.
sale. The land was cried off by Acheson, Action of trespass to try title by Clara
the trustee in the deed of trust; but H. M. Crawford and another against J. S. MC
Tone, administrator, was present at the sale, Donald. From a judgment of the court of
and notice was given to the bidders that civil appeals affirming a judgment for de
he would convey the interest of the estate fendant, plaintiffs bring error. Affirmed.
in the land. Appellants contend that these The following is the opinion of the court of
proceedings rendered the sale void. The civil appeals (Rainey, J.):
order of sale should have directed the sale
to be made by the administrator. But this Conclusions of Fact.
is a mere irregularity, and not sufficient to The conclusions of fact of the court be
make the sale void. The sale was duly low we adopt as the conclusions of this reported, and confirmed by the court, which court, except in the following particulars: cured the defect, and such sale is not subThe application to the probate court to sell ject to collateral attack. The court had the land in controversy was made by J. authority to order the sale. When such an Milligan. The order made by the court on
order is made under the law, it is the duty the trial docket was that the land be sold of the administrator to make the sale, and according to law, but the order as enter- in this case he did make it, and that part ed upon the minutes of the court directed of the order directing the sale to be made the sale to be made by the "petitioner.” by Milligan can be regarded of no force, and The record is silent as to H. Tone, the execu
the order of sale be held sufficient, as such tor, being directed to sell the land, though defect was cured by the administrator sellhe acted with the trustee, Acheson, in the ing and the court confirming his acts. sale, and reported to the court that he had Brown v. Christie, 27 Tex. 73; Perry v. sold in pursuance of said order the land in Blakey (Tex. Civ. App.) 23 S. W. 804. The controversy, which report was confirmed. land sold for a fair price. The proceeds In addition to the findings of the court be- were applied to the benefit of the estate, low, we find that the application made by which has been administered honestly. Milligan embraced the land mentioned in There is no fraud alleged or proved in conthe deed of trust, and the same is properly nection with the proceedings. The sale was described therein.
acquiesced in for a long time, and the same should not now be disturbed. Sypert v. the ground of fraud, and that the language McCowen, 28 Tex. 636. Therefore the judg- here used will prejudice that case. This bement of the court below is affirmed.
ing a technical legal action for the recovery
of the land, -no fraud being alleged in the Additional Conclusions of Fact.
proceedings, and no equitable ground being At the request of appellants, the court shown,--but based upon irregularities in the finds as a conclusion of fact that the fol- administration proceedings, while it was not lowing entry was made on the docket of necessary to use such language, we are not the probate court of Grayson county on prepared to say that it was inappropriate. September 30, 1874, to wit: "Orders of Pre- We will say, however, that we only intended vious Term. 3 D., 4 W. It is ordered by it to apply to the record as presented in this the court that the claim of plaintiff be ap- case, and not in any way to affect or have proved as a third-class claim for the sum any bearing whatever on any other proceedof $1,639.60, and that the property described ings that may be pending. Believing that in plaintiff's petition be sold on a credit of the action of the court in affirming the judgtwelve (12) months, on the terms prescribed ment of the court below was correct, the moby law, on the 1st Tuesday in December, tion for rehearing is overruled. 1874.'” And also, on October 1, 1874, the Brown & Bliss and H. G. Robertson, for following order was entered on the minutes
plaintiffs in error. Decker & Harris, for deof said court, to wit: "J. Milligan vs. Es- fendant in error. tate of C. W. Nelson, October 1st, 1871. This day came J. Milligan, by attorney, and DENAAN, J. This is an action of trespresented his claim against said estate for pass to try title, brought by plaintiffs in erthe sum of $1,639.60, which appearing to ror against defendant in error to recover the court as just and duly authenticated and title and possession of one-half interest in allowed by the executor of said estate, it block 65, Miller's Second addition to the city is ordered by the court that the same be of Denison, Grayson county, Tex. Defendestablished as a third-class claim against ant in error pleaded not guilty, limitation, said estate; and, the application to sell and improvements in good faith. The triai certain lands belonging to the said estate to court having rendered judgment for defenddischarge said claim having been heard and ant in error, and same having been affirmed fully understood by the court, it is ordered by the court of civil appeals, plaintiffs in that the petitioner proceed to sell the same error have brought the case to this court by as described by metes and bounds in said ap- writ of error. plication on a credit of twelve (12) months, Shepard & Nelson, a firm composed of L. on terms as required by law, said sale to W. Shepard and C. W. Nelson, being the take place on the first Tuesday of Decen- owners of the land, in December, 1873, ber, 1874."
through their duly-authorized attorney, H.
Tone, conveyed same, with other lands, to On Motion for Rehearing.
Acheson, trustee, by trust deed properly de(March 7, 1894.)
scribing the land, to secure an indebtedness
due by said firm to J. Milligan. Nelson hayAppellants ask this court to give its con- ing died in March, 1874, leaving a will devisclusion of law on the question of limitation ing his property to plaintiffs in error, and as to the minor Mary Nelson. The point on
The point on appointing H. Tone his executor, and the which the case was decided by us disposes will having been probated, and said executor of the case, and a finding on the other ques- | having qualified, the district court of Graytion in the case becomes immaterial. If the son county, Tex., which convened September supreme court should pass upon the case, 28, 1874, sitting in probate, on the 24th day and differ from this court on the question of October, 1874, made the following order: on which the case was disposed of, we ap- “J. Milligan vs. Estate of C. W. Nelson. This prehend our failing to find a conclusion of day came J. Milligan, by attorney, and prelaw on the question of limitation would not sented his claim against the said estate for preclude said court from passing upon that the sum of $1,369.60, which appearing to the question, as the findings of fact of this court court as just, duly authenticated, and allowon that issue are sufficiently full.
ed by the executor of said estate, it is orAppellants also complain of the following dered by the court that the same be establanguage used in the opinion of the court lished as a third-class claim against said esrendered herein, viz: “The land sold for a tate; and the application to sell certain lands fair price. The proceeds were applied to the belonging to said estate to discharge said benefits of the estate, which has been ad- claim having been heard, and fully underministered honestly. There is no fraud al- stood by the court, it is ordered that the peleged or proved in connection with the pro- titioner proceed to sell the same as described ceedings. The sale was acquiesced in for a by metes and bounds in said application, on long time, and the same should not be dis- a credit of twelve months, on terms as returbed,”-the main ground of complaint be quired by law; said sale to take place on the ing that there is another suit in which the first Tuesday in December, 1874.” On Febadministration proceedings are attacked on ruary 12, 1875, said executor filed in said court she
i he following report of sale: "H. court of general jurisdiction over the subTone, Executor Estate of C. W. Nelson. ject-matter of the suit or proceeding in which State of Texas, County of Grayson. In Dis- same was rendered; (2) whether the attack trict Court, Jan. Ter., A. D. 1875. To the is being made by parties thereto or their Hon. the District Court of Grayson County, privies, or by strangers; (3) whether the atsitting in matters of probate: Your petition
Your petition- | tack is direct or collateral; (4) whether the er, H. Tone, executor of estate of C. W. Nel- evidence adduced to support the attack is son, represents that, pursuant to an order apparent on the face of the record of the issued out of this court at September term, proceedings in which such suit was renderA. D. 1874, he did offer at public vendue, ed, and, if not, whether evidence aliunde is within the legal hours, on first Tuesday in competent; and (5) whether the ground of December, A. D. 1874, certain lands embra- the complaint is one which, if true, goes to ced in said order to satisfy a note held by J. the power of the court to render the judgMilligan against said C. W. Nelson and L. ment, or is a mere matter of procedure. We W. Shepard, and secured by trust deeds will confine ourselves to the determination, which were embraced in application for said in their order, of such of said questions and order; that at said sale block 63, in town of the discussion of such principles of law apDenison, was knocked off to J. C. Montgom- plicable thereto as may be necessary to the
decision of the case before us, without atwhich petitioner states was a fair tempting to discuss the many interesting price, and he therefore asks the court to con- questions which may be suggested. firm said sales. * * * F. N. Robertson, Previous decisions, which meet with our Atty. for Petitioner.” On the 19th day of entire approval, have settled beyond controFebruary, 1875, said district court, sitting in versy the proposition that our probate courts probate, entered the following order: "H. are courts of general jurisdiction in matters Tone vs. Estate of C. W. Nelson. This day pertaining to estates of decedents. Murchi(ame on to be heard the report of sale of son v. White, 54 Tex. 83. The proceedings certain lands belonging to said estate. The in probate to sell the property in controversy same, in all things appearing to be fair and herein being quasi in rem, the devisees correct, is confirmed. * * * And the ad- (plaintiffs in error) were parties thereto. ministrator is ordered to make deeds to the Murchison v. White
, 5+ Tex. 83. A direct purchasers upon compliance with the terms attack on a judgment is an attempt to amend, of sale. *
The original inventory of correct, reform, vacate, or enjoin the exesaid estate, filed by the executor in said court cution of same in a proceeding instituted for on the 29th day of January, 1875, among that purpose, such as a motion for a rehearother lands, contained "Block 65, Miller's ing, an appeal, some form of writ of error, Second addition to the city of Denison.” The a bill of review, an injunction to restrain purchase money having been paid to him, its execution, etc.
its execution, etc. A collateral attack on a the executor, soon after the entry of said or- judgment is an attempt to avoid its bindder confirming the sale, executed a deed to ing force in a proceeding not instituted for the purchaser for the land in controversy one of the purposes aforesaid as where, in herein, which deed having been lost or de- an action of debt on a judgment, defendant stroyed, he, on the 24th day of July, 1888, attempts to deny the fact of indebtedness, or being still executor, executed and delivered where, in a suit to try the title to property,
а land in lieu of said lost deed. Plaintiffs in of title, and the adverse party attempts to error claim the land in controversy as dev- avoid its effect, etc. Tested by these princiisees of said C. W. Nelson under the will ples, it is clear that the attack on the judg. aforesaid and defendants in error asserted ment of the probate court confirming the title by mesne conveyances under said pur- sale in the case before us is collateral. It chaser at said probate sale. If such sale was does not appear from the face of the record sufficient to pass the title to the property to of the court in the probate proceedings where the purchaser thereat, then plaintiffs in er- the sale was made. The undisputed verbal ror cannot recover, and the judgment must testimony in the case, however, shows that be affirmed, irrespective of any other ques- after said order of sale was made, Acheson, tions in the record.
the trustee in said trust deed, acting under The first ground upon which plaintiffs in the power contained therein, sold the land in error claim such sale to be void is that it controversy, together with the other land dewas made at Denison, instead of at Sher- scribed in said trust deed, at public vendue, man, the county seat of Grayson county, within the hours prescribed by law, on the where the courthouse was then situated, in first Tuesday in December, 1874, in the city violation of the statute requiring same to of Denison, about 10 miles distant from Sherbe made at the door of the courthouse of the man, the county seat of Grayson county, at county. Where a domestic judgment is which sale said executor was present, taksought to be impeached in order to determine ing part as executor, it being announced by the rules of law governing the particular pro- the trustee, in crying off the property, that ceeding, it becomes necessary to consider (1) he, as trustee, would convey to the purwhether such judgment was rendered by a chasers at such sale the title of the surviy