Reports of cases argued and decided in the Supreme Court of the State of Texas, during the Galveston session, 1867, with an appendix containing the cases of the Galveston session, 1861, etc. Volume 29. Page: 73
ix, 626 p. ; 22 cm.View a full description of this book.
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1867.] PAGE v. AikIM. 64
It is described as " one undivided league of land, situated
on the Lavaca, worth $2,222."
If the league was not to be divided, why say that it
was undivided?
Why, it may be asked, did not the second appraisers
describe this as an undivided league ?
While one-half of the league had been appraised at
$2,222 in 1843, how does it happen that more than six
years thereafter the second appraisers, on the second day
after their appointment, appraised the whole league at
less than one-half that sum ?
We further submit, that the court erred in refusing to
give the instruction asked for by the plaintiff.
The record shows that William Chase died in 1843,
when the probate law of 1840 was in force, and the sale
was evidently made, as the petition for sale shows, under
the act of 1848. Hart. Dig. art. 1153.
It may be said that the rights of the wife were fixed by
the law of 1840, in force at the time of the death of the
husband. Their rights would not be enlarged or diminished
by a subsequent act. Besides, article 1183 shows
that its provisions were not intended to apply to prior
cases, and could not be made to apply to this.
[64] We contend that the county court could not order
a sale in this case under the act of 1840, for that only
provides for the sale of property for the payment of
debts; and, in this case, the petition for the sale shows
the estate owed no debts.
It should not have been held under the act of 1848, for
the case neither came within the terms nor meaning of
the above-cited article of that act.
We therefore submit, that the county court had no authority
or jurisdiction to order the sale of this league
under either act. This we say the record of the county
court (which was introduced by the defendants in the
district court) clearly shows. Least of all had the county
court the right to order the sale of the half for which
the appellant contends; for we submit that the petition
73
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Texas. Supreme Court. Reports of cases argued and decided in the Supreme Court of the State of Texas, during the Galveston session, 1867, with an appendix containing the cases of the Galveston session, 1861, etc. Volume 29., book, 1882; St. Louis, Mo.. (https://texashistory.unt.edu/ark:/67531/metapth28544/m1/71/: accessed April 26, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .