Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62. Page: 62
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62 ANDERSON v. STOCKDALE. [Austin Term,
Opinion of the court.
language used in conferring the power is in legal effect the same as
if it had been "entire control of my estate so far as is accorded
and permitted by law."
The extent of the power as thus conferred would be to do whatever
was necessary in and about the administration of the estate.
But it is not believed that the executor, under the terms of the will,
would have the power to sell and convey the lands of the estate at
his discretion, or for any other purpose than the payment of debts,
or carrying into execution the executory contracts with reference
to lands made by the testatrix. A conveyance made by the executor
for any other purpose would be without authority, and no title
would pass thereby. It would not stand upon the same footing as
one based upon a defective or irregular execution of a power, which
equity would aid or time cure. Connolly v. Hammond, 51 Tex.,
635. While such a conveyance might be made the basis for the defense
of limitations, no facts are alleged which show that appellant
is barred from asserting his rights as against such deed. And as his
is a legal title, the doctrine of stale demand cannot be invoked
It is claimed by appellant that the judgment in favor of Johnson
and against Levi Jones was barred by limitations at the time of the
conveyance by Stockdale to Johnson, July 27, 1868. Thle judgment
was rendered June 3, 1853, for the sum of $17,367. And the
position is assumed by appellant that it was barred, and therefore
afforded no authority to Stockdale to make the conveyance.
Without expressing any opinion as to what might be the effect
upon the question by reason of the provisions of the constitution
of 1869, it will be remembered that all limitations as to money demands,
suits, etc., were suspended January 28, 1861, and remained
so suspended until September 2, 1866. Then, counting from the
date of the judgment to the 28th day of January, 1861, and it will
be seen that limitations had run for seven years, seven months and
twenty-five days. And counting from the 2d day of September,
1866, to July the 27th, 1868, date of conveyance from Stockdale to
Johnson, will give one year, ten months and twenty-five days, which,
when added together, make nine years, six months and twenty
days, as the greatest length of time that limitations could have run
against that judgment, whereas ten years was the shortest period
in which the statute would bar a judgment. P. D., art. 4608.
By reason of the execution of the instrument to Jones, of April
24, 1855, the lands situated in Jackson and Calhoun counties therein
described stood bound for the payment of that judgment. Mrs.
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62., book, 1885; Austin, Texas. (texashistory.unt.edu/ark:/67531/metapth28512/m1/84/: accessed December 15, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .