This was an action brought in the District Court of Freestone county, to try the title to the lands described in the petition. For some cause or other the venue was changed to Anderson county, and at the December term, 1870, a jury being waived, the case -was tried to the court, and resulted in a judgment in favor of the appellees.
The errors assigned for a reversal of the judgment are found in the several bills of exception taken on the trial. Intending to abridge this opinion as much as possible, we may here remark that in our opinion every exception is well taken. The very learned and able briefs filed in this case, with the accompanying arguments, discuss all the questions involved with consummate ability, and as they will be published with a report of the case, there is little need of our making citation of numerous authorities in support of our opinion.
Both parties deraign title from Wiley M. C. Jones, to whom a league of land was granted in Burnett’s District, in the year 1835.
On the 9th day of July Jones sold his interest in the land to Richard Sparks, conveying the same in writing, and it is upon this paper-writing that the first controverted point arises. Was it a deed absolute, conveying all the title which Jones had to Sparks % Or was it but a bond for title ? To a certain extent it was both. In consideration of two hundred dollars, the receipt of which is acknowledged, it “ granted, bargained, and “ sold ” to Richard Sparks, all the interest in and to the head-: right of one league of land therein described. There was no covenant for title at any future time, or upon the happening of any contingency; nor does it appear from the instrument that anything remained to be done by Sparks to entitle him to all the interest which Jones had in and to the land.
But Jones did bind himself (and in this the instrument par*251takes of the nature of a bond) under a penalty, to remain within the jurisdiction of the Mexican States, for the term required by law to give a full and complete title for the land to Sparks. This was all that remained to be done, fully and completely to execute the contract between the parties, and there is no complaint that Jones did not fully comply with his covenant, thereby vesting a full and perfect title in Sparks.
But the appellees claim that Sparks, in the year 1837, sold the land to Erastus Smith, through whom they claim title.
Jones and Sparks both died, and we are unable to learn the precise date of the demise of either. But, in 1844, Smith instituted a proceeding against Mrs. Sparks, the widow of Richard Sparks, who was the administratrix of her husband’s estate, in the County Court of the county of Nacogdoches, setting up by petition that he had bought from Sparks, in his lifetime, the land in controversy, and had executed to him a power of attorney to enable him to obtain title from Jones, and that he had also placed in the hands of Sparks the original paper of the 9th of July, 1835, given by Jones to Sparks, and also the testimonio. This petition concluded with a prayer that Mrs. Sparks, the administratrix, should be ordered to deliver to him said papers, and it appears that an order of the court, in accordance with the prayer of this petition, was made, and the papers were delivered to Smith. And now, it seems, that at the January term of the same court, for the year 1845, letters of administration were granted to John C. Morrison on the estate of Jones, and immediately, at the same term of court, Smith commenced a proceeding against Morrison, to compel him, as the administrator of Jones’s estate, to make a deed to the land in controversy, and such proceedings were therein had, as resulted in the court ordering Morrison to make the deed as prayed for; and thus the appellees, who are the widow and sole heir of Erastus Smith, deceased, claim to derive their title.
A proper construction of the law (Hartley’s Digest, Articles 1070 and 1071) forbids both the first and second proceeding in *252the probate court; which court had no jurisdiction, and all its orders and decrees, without jurisdiction, are null and void.
It is not necessary here to discuss the doctrine of presumptions, when applied to courts of general or of special jurisdiction. The cases of Horan v. Wahrenberger, 9 Texas, 313; Mitchell v. Runkle, 25 Texas, Sup., 136; Elliott v. Piersol, 1 Peters, 328; Mills v. Martin, 19 Johnson, 33; Easley v. McClinton, 33 Texas, 288; and Withers v. Patterson, 27 Texas, 491, are all cases bearing upon this point, and showing that the judgments and decrees of courts of limited jurisdiction cannot be aided by legal presumptions.
But there is nothing in the case to invoke this doctrine—presumptions only supply the place of proof, and they cannot arise to counteract or neutralize the force of reasonable evidence. If the probate court of ¡Nacogdoches county had been a court of general jurisdiction, this case could have stood on no different ground, for the record shows affirmatively that that court had no jurisdiction, either in the matter to compel Mrs.' Sparks to surrender the title papers, which were in the hands of her husband at his death, nor had it jurisdiction, on the petition of Smith, to compel Morrison, the administrator of Jones; to make a deed for the land.
In certain cases, by Article 1070, Hartley’s Digest, the administrator or executor of an estate or will might petition the court for an order to malee title to real éstate, in pursuance of the outstanding contracts of the deceased parties whom they represent, and where such contracts are produced to the court, and it is made to appear by evidence that it is to the interest of the estate that such contracts shall be executed, the court will ■order it done; and in no other case had the probate court power to make such an order. In the case of Smith against Mrs. Sparks, to obtain possession of the title papers, the probate court had no jurisdiction. But it is unnecessary to notice this question farther than to say it was error in the District Court to admit the record in evidence in the case at bar. The heirs of Sparks were not parties to that proceeding; It maybe said, *253it was not necessary they should be; nor was it necessary, but it would most assuredly have been, if it had been intended thereby, in any manner, to divest them of the title to the lands which descended to them at the death of their father, subject only to the community rights of their mother, and the rights of their father’s creditors, and, it might have been, homestead rights.
It was error alike to admit the record of the proceedings of the probate court in the case of Smith against Morrison in evidence in this case. The heirs of neither Jones nor Sparks, nor those claiming under them, were parties to that proceeding, and the whole proceeding was void.for want of jurisdiction. Such an action could only have been had in the District Court. (Hartley’s Digest, Article 1071.)
We might stop here and consider this case disposed, of. But we are induced to remark, under a sense of duty, that it is very singular that counsel in the case of Smith against Morrison should have represented both parties; that even the probate judge should have interested himself in hunting up a person willing to serve as administrator; that he should have used language to Morrison, to induce him to accept the trust before his appointment; that he should have granted the prayer of the petition without one particle of evidence which can now be discovered, showing a transfer of the title-papers from Sparks to Smith; that he should have failed to take evidence in writing, to be filed and preserved in the records of his court; that he should have assumed jurisdiction upon the simple and totally insufficient allegation, “ late of said county,” when the lands did not lie in his county ; when there was no showing, either by Morrison or by Smith, that it was to the interest of Jones’s estate that the land should be deeded to Smith. There was no sufficient evidence to show that the county of Nacogdoches was the county of Jones’s last residence; nor was there even an averment found in Smith’s petition, that he was the legal owner of any bond for title ever made by Jones in his lifetime.
*254The conduct of Morrison, the administrator, is very noticeable in this case, and is only in part redeemed by the apparent candor with which he details the proceeding, in his deposition. |He waives the service of process; accepts the services of Smith’s attorney; returns no inventory, for there was no property to invoice; schedules no debts, for there were none to list; suffers everything to go on quietly and smoothly, under the auspices and superintendence of Smith’s attorney and Wingfield, the probate judge, who had told him beforehand, he would have little or nothing to do—that all that was wanting was to get a deed to Jones’s head-right. And when, two or three years after-wards, there being another probate judge, he is cited to settle his account, he comes into court, innocent of all debts and credits; he had found no property, and nobody had set up any .claims; the only thing in the world he had done was to deed away Jones’s head-right, under a strong pressure of circumstances. We forbear further comment on this case. The judgment of the District Court is reversed, and this court, finding the title to be in the appellants to the lands described in the plaintiffs’ petition, do order, adjudge, and decree accordingly.
Béversed and rendered.