The defendants in error brought this suit to recover of plaintiffs in error a tract of land patented to "the heirs of James R. Parker." It was admitted in the trial court that they were such heirs. The defendants below claimed under one J.W. Moore, deceased, and it was also admitted that they were the heirs of the wife of Moore, and that she was the sole devisee under his will.
It was proved that Moore was the administrator of the estate of James R. Parker, deceased, and that at the March Term, 1840, of the County Court of Harris County he filed his final report, showing that the estate was indebted to him, that it was insolvent, and that among the effects of *Page 491 the estate was a headright certificate for 1280 acres of land, which he prays that he be allowed to take at a value to be assessed. Upon the hearing on the 4th day of April, 1840, the court approved the account, and decreed that the certificate be taken by the administrator at its appraised value. The account shows that the certificate was appraised at $80.
The defendants, in their answer, prayed judgment for the land, and in the event that it could not be awarded them, that the plaintiffs be required to pay to them, or into court for their benefit, the amount for which the certificate was taken under the attempted transfer by the decree of the County Court.
We concur with the Court of Civil Appeals in holding that the decree of the court, in so far as it purported to invest the administrator with title to the certificate, was void, and deem it unnecessary to add anything to what they have said upon that question. But in their conclusion that the plaintiffs could recover without paying to the defendants the amount at which the value of the certificate was assessed in the transaction, we do not concur.
In Northcraft v. Oliver, 74 Tex. 162, in speaking of a void sale, Mr. Justice Henry says: "But if the property so purchased was at the time of the purchase charged or encumbered with the debt for which it was sold, then independently of the legal proceedings under which it was sold, we think the rule, that the purchase money must be returned before the property can be recovered back by the owner or his heirs, does apply." This is a very clear statement of the rule, and announces the same principle which was applied in French v. Grenet, 57 Tex. 273. See, also, Morton v. Wellborn, 21 Tex. 772; Howard v. North,5 Tex. 290; Bailey v. White, 13 Tex. 114 [13 Tex. 114]; Johnson v. Caldwell, 38 Tex. 218 [38 Tex. 218]; Walker v. Lawler, 45 Tex. 532; McDonough v. Cross, 40 Tex. 251; Herndon v. Rice, 21 Tex. 455.
In this case the order of the court recognized the claims of the administrator as subsisting debts against the estate; and they were charges upon the property in the hands of the administrator. The defendants are therefore entitled to be reimbursed for the amount which was credited upon the claims in the transaction, before the plaintiffs can recover the land. They are also entitled to interest. Mayes v. Blanton, 67 Tex. 245 [67 Tex. 245].
The judgment will therefore be reformed so as to allow the plaintiffs in the court below to recover the land, conditioned, however, upon their paying to the defendants within six months from this date the sum of $80, with interest thereon from the 4th of April, 1840. The plaintiffs in error will recover the costs of the appeal and of the writ of error.
Reformed and affirmed.
Delivered March 19, 1893. *Page 492