Appellants, Caroline E. Blagge, joined by her husband, H.W. Blagge; Fannie L. Nichols, joined by her husband, Fred M.C. Nichols; A.S. Butler, Sadie J. Butler, and Allen G. Butler, *Page 361 instituted this suit against appellees to recover 600 acres of land, part of a two-league grant to Thomas J. Chambers, in McLennan County.
Appellants stated in their petition, that Caroline E. Blagge owned an undivided one-half interest in said land in her separate right, that Fannie L. Nichols owned an undivided one-fourth, and the other plaintiffs the remainder. They also pleaded in the alternative, that if any of the plaintiffs should fail to recover, and it appear that the other plaintiff or plaintiffs and the defendant owned the land jointly, then for a decree of partition.
Appellees, defendants in the court below, pleaded not guilty, the statutes of three, five, and ten years limitations, and improvements made in good faith.
In avoidance of the plea of limitation, Caroline E. Blagge pleaded coverture, and Fannie L. Nichols pleaded infancy and coverture.
The court instructed the jury to return a verdict for the defendants, which was done, and judgment rendered accordingly.
Upon the testimony in the record and admissions in appellants' brief, this court finds as follows:
1. The land in controversy is part of two leagues granted by the State of Coahuila and Texas to Thomas J. Chambers on the ____ day of March, 1832.
2. August 7, 1847, Thomas J. Chambers conveyed said two leagues of land to John S. Sydnor, by deed duly executed.
3. July 24, 1848, John S. Sydnor conveyed said two leagues of land to Jonas Butler, by deed duly executed.
4. It was admitted by the defendants that in partition with the other joint owners of said two leagues, the land described in plaintiffs' petition was duly and legally set aside to Jonas Butler and his heirs, in the year 1859, in a decree of partition. * * *
Opinion. — 1. The evidence introduced by appellants showed prima facie, that they were the owners of the land sued for, and they are entitled to recover the same, unless defeated by the testimony offered by the appellees. Counsel for appellants concedes in his brief that all the appellants except Mrs. Caroline E. Blagge are barred by limitation. For this reason her rights only will be considered in this opinion.
Appellants rely upon the proceedings, and sheriff's sale made thereunder, in the District Court of Galveston County, in the case of Ex Parte H.W. and Caroline E. Blagge and others, shown by the record, to show that appellants, or those under whom they claim, had been divested of all title to the land.
Appellants, among other objections to the validity of the sale in question, contend, that said District Court had no jurisdiction to entertain *Page 362 the petition and order the sale, and therefore that the sale made by the sheriff was and is absolutely void.
The first step in the proceedings referred to consists of an ex parte petition filed by McLemore Hume, as attorneys for Harry W. Blagge, Caroline E. Blagge, George J. Butler, and Fanny Butler, a minor, by her guardian, George Butler, the parties at interest. This petition states that Mrs. Blagge and George J. and Fanny Butler are joint owners of the real estate therein described, the former owning an undivided half and the two Butlers owning the other half; and it asks the court to make an order directing the sheriff of Galveston County to sell said lands at public sale at the court house door of said county, on the first Tuesday in November, 1869. This petition was filed July 5, 1869, and on the same day the court granted the order as prayed for. On the 17th day of January, 1870, the same parties, by same attorneys, filed another petition or application, stating that the decree made on July 5, 1869, had not been executed, and asked the court to make an order directing the sheriff to sell said real estate on the first Tuesday in March, 1870. January 17, 1870, the court granted this order; February 7, 1870, the clerk issued the order of sale, as provided in the two decrees referred to, and on the first Tuesday in March, 1870, the sheriff of Galveston County made the sale.
If the District Court of Galveston County had no jurisdiction to make the decretal orders above referred to, then it follows that said orders have not the binding force of a judgment, and they can be assailed in a collateral as well as in a direct proceeding.
When the first decree was made the Constitution of 1866 was in force; when the other order and the sale were made, the Constitution of 1869 had gone into effect. Peak v. Swindle,68 Tex. 242. But it is immaterial by which Constitution the question of jurisdiction is to be tested; because if under either it existed, it was conferred by the general jurisdiction clause, and these are exactly the same in the two instruments. Each Constitution, after conferring original jurisdiction on the District Courts to try certain enumerated classes of cases, reads as follows: "And of all suits, complaints, and pleas whatever, without regard to any distinction between law and equity, when the matter in controverfy shall be valued at or amount to $100, exclusive of interest." This and similar provisions in other Constitutions of this State constitute what are termed "general jurisdiction clauses."
When this clause is analyzed, it will be seen that there can be no jurisdiction under it until there is a suit, complaint, or plea, and a matter in controversy. The phrase "matter in controversy" does not signify that there must necessarily be an issue of either fact or law when the case is called for trial, because the defendant may confess judgment. But it implies that the pleading which invokes jurisdiction must disclose an *Page 363 adversary, and assert a right against him which is not shown by the pleading to be conceded by him.
In Messner v. Giddings, 65 Tex. 308, in considering the question of District Court jurisdiction under the Constitution of 1866, where the petition disclosed an apparent but not real defendant, our Supreme Court said: "It can not be claimed that the clause of the Constitution first quoted gave such power, for the proceeding was neither a suit, complaint, nor plea involving a matter of controversy. It was a proceeding essentially administrative in its character, and not a controversy between party and party in which adverse claim of right was asserted, such as was evidently contemplated by the Constitution. If it is claimed that in the court, as a court of equity, under that clause, the power existed, it must be replied, that the District Court, whether as a court of law or a court of equity, had only such power as the Constitution gave it. There is no such thing as the inherent power of a court, if by that be meant a power which a court may exercise without a law authorizing it. That clause of the Constitution empowered District Courts to exercise all the power given, whether the procedure necessary to accomplish that purpose be such as pertains to a court of law or a court of equity; but it in no manner conferred upon such courts the power to exercise any and every power which at any time may have been exercised by courts of chancery in England or elsewhere.
"Courts of chancery in England, at an early day, may have exercised such a jurisdiction as the District Court for Washington County assumed to exercise, but we have no inclination now to consider the ground on which the power was then claimed, for at the present day no such power is claimed to exist in a chancery court in England, unless given by act of Parliament. Taylor v. Phillips, 2 Vesey, Sr., 2, 3; Russell v. Russell, 1 Molloy, 525."
The essential functions of District Courts in this State have always been judicial, and not administrative. They are organized to adjudicate differences between litigants, and not to register and execute agreements between individuals. When they have acquired jurisdiction of a cause, they may, by a receiver or otherwise, do many things that are not strictly judicial, but administrative. But their power to do these things is ancillary to their jurisdiction over the main cause. And in the exercise of jurisdiction in probate matters they may exercise functions that are administrative. Such jurisdiction is expressly conferred by other constitutional provisions.
In the proceedings under consideration, the pleadings which form the basis of jurisdiction were not only ex parte, but they disclosed the utmost harmony among the parties to the supposed litigation. Each conceded all the rights that the others asserted. Nothing was left for the court to decide; they were agreed in every particular, and even the possibility of *Page 364 an issue did not exist. All that was asked of the court was to enter the agreement upon its records, and issue a mandate for its execution. Such being the case, the District Court of Galveston County had no jurisdiction, and the orders made by it are not binding upon Mrs. Blagge. If it be suggested that as Fanny Butler was a minor, it was necessary to have a judicial sale of her interest in the property, otherwise title could not be divested out of her, it may be answered, that the proper court to make such a sale, so as to bind the minor's estate, was the Probate Court in which the guardianship of said estate was pending.
2. Although at the time in question there was no statute authorizing the sale of real property for the purpose of partition, still we do not hold, that had a suit been instituted to partition the land, with the parties plaintiff and defendant thereto, the District Court would not have had the equitable power to order the sale of the property and a division of the proceeds. But such is not the case before us.
3. But it is contended by appellees that Mrs. Blagge is estopped by her conduct from denying the validity of the sale in question. If it be conceded that the facts testified to by the witness McLemore are true, though as to some of them he is contradicted by Mrs. Blagge, the facts upon which it is sought to base an estoppel are these: Mrs. Blagge joined in the application for the order under which the land was sold. McLemore, the attorney of all the parties, bought in the land at the sale, in trust for George Butler; afterwards he sold it to Hugh Evans, under whom defendants hold, and accounted to Mrs. Blagge's husband, who was acting for her, for her interest in the proceeds of the sale; and all of these facts were known to her at the time.
Mrs. Blagge did not misrepresent or conceal any fact; no part of the proceeds of the sale was used to discharge any lien upon or to otherwise benefit her separate property. It must be presumed that purchasers were as well qualified to judge of the validity of the sale as was she.
In the case of Berry v. Donley, 26 Tex. 737, it was held, that a deed executed by a married woman, but not acknowledged before an officer in the manner prescribed by statute, did not pass title to real estate, and that the fact that the consideration was used for the support of herself and family did not create an estoppel against her. The doctrine announced in that case has been repeatedly followed by the same court in other cases. Eckhardt v. Schlecht, 29 Tex. 130; Fitzgerald v. Turner, 43 Tex. 79; Johnson v. Bryan, 62 Tex. 623; Williams v. Ellingsworth,75 Tex. 480.
In Johnson v. Bryan, supra, the rule of estoppel against a married woman is thus stated: "To estop a married woman from asserting her rights to land, it is essential that she should be guilty of some positive act of fraud, or else of some act of concealment or suppression which in law would be equivalent thereto. For all who deal with a married woman *Page 365 directly, or deal in any manner affecting her rights, are chargeable with a knowledge of her disability, and that she can only convey land in the manner prescribed by the statute."62 Tex. 623.
The cases cited by counsel for appellees are not similar in their facts to this case, and do not conflict with the cases cited in this opinion.
Conceding the truth of appellees' evidence wherever conflict exists, still it must be held that Mrs. Blagge is not estopped.
4. If we are correct in holding that the District Court of Galveston County had no power to order the sale of the land, and that McLemore acquired no title through his purchase at said sale, of course Evans, who purchased from McLemore, and appellees, claiming under Evans, are chargeable with the vice in McLemore's title. His deed discloses its own invalidity, and no one holding under him can be an innocent purchaser.
5. We deem it unnecessary to consider other points presented in the briefs of counsel. Our views on the questions considered are decisive of the case. A question of practice is all that remains for consideration.
It is insisted, on behalf of Mrs. Blagge, that if it be held that her prima facie title is not defeated by appellees' evidence, conceding it all to be true, then judgment should be here rendered for her for one-half of the land, and the cause remanded for partition.
Appellees do not deny this contention, nor intimate a desire to offer further testimony, and the record does not indicate the existence of other material evidence. Therefore, it is assumed that this disposition of the case, as it will enable appellees at once to take it to the Supreme Court, will be more satisfactory to them than a total reversal.
The judgment of the court below as against all of the appellants except Caroline E. Blagge and her husband, H.W. Blagge, will be affirmed. As to Mrs. Caroline E. Blagge and H.W. Blagge, said judgment will be reversed, and judgment here rendered for said Caroline E. Blagge for an undivided half-interest in the land sued for; and for the purpose of partition between her and the appellees, and adjustment of equitable rights growing out of improvements made by the latter, the cause will, as to them, be remanded. One-half of the costs of this appeal will be taxed against George J. and Fanny Butler, and the other half against the appellees.
Reversed and rendered as to Caroline Blagge; Affirmed as to other appellants.
ON MOTION FOR REHEARING.