
    Dobbin, Adm’r, v. Bryan.
    The District; Courts have jurisdiction to investigate and arrest a fraudulent combination between an administrator and others, confederating to injure those interested in the faithful administration of the estate. (Note Cl.)
    Multifariousness is an objection which is entitled to no liberality of construction in its favor. If the petition confines itself to the adjustment of all the equities arising between the parties, however various those equities may bo in their origin, the court will dispose of them all without driving the party to another suit.
    If matters foreign to the relief sought be contained in a petition, they should be pointed out by special exceptions. A general demurrer will not reach them. (Note 52)
    The court knows judicially that the land office was not practically opened for the purpose of issuing patents until some time in the year 18‘H.
    
      Quere whether a bond to convey land is a demand for money which would be barred in four years by the statute of limitations.
    Error from Harris. The defendant in error filed his petition in the District Court against the plaintiff in error, administrator of Berry, and against Weir, Hoth, and Banks. He alleged that he had a claim against the estate of Berry, founded on an instrument in writing, in the words following: “State of Mississippi, Adams county: Know all men by these presents that I, Anderson M. Berry, am held and firmly bound to Dr. Joliu L. Bryan in the smr of six thousand dollars, to the which payment, well and truly to be made, I bind myself, my heirs, executors, and administrators, firmly by these presents. Entered into in the town of Natchez, in the county and State aforesaid, this 16th day of February, A. D. 1837. The condition of the above obligation is such that whereas I have purchased and am now owner of head right claims to five Spanish leagues of land, purchased of claimants, in Col. John Seguin’s company, which are entitled by the laws of the Republic of Texas to be entered in said Republic within the first six months after opening the land office in said Republic, and have this day sold unto the said John L. Bryan one-half the said five leagues of land thus to be entered for the sum of two thousand five hundred dollars, to mo in hand paid at and before signing of these presents, the receipt whereof is hereby acknowledged, I now hereby bind myself to have located, in as judicious and advantageous a manner in Texas as I should do for my own private benefit, within six months after the opening of the land office in said Republic, lo secure the Government title papers, and to make a deed or deeds for the aforesaid one-half of Che said five Spanish leagues of land, to him, the said John L. Bryan, his heirs and assigns, free and clear of any further charge or expense therefor; then this obligation to he null and void; otherwise to remain in full force and virtue.
    “In witness I hereunto set my hand and seal the day and date above.
    A. M. Berby.” [Seal.]
    The plaintiff alleged that the conditions of this bond had never been complied with or performed, and that the same remained unsatisfied; that Berry departed this life in August, 1844; that one John Shackelford, jr., had been duly appointed his administrator by the Probate Court of Harris county; that petitioner had within the time prescribed by law presented the said bond to the said administrator, who had acknowledged in writing on the same that it was unsatisfied ; that- Shackelford had subsequently, and before closing the administration, resigned, and .the defendant Dobbin had been appointed by the said court administrator de bonis non of said estate; that Dobbin refused tc acknowledge the acts of his predecessor and denied plaintiff’s claim, and had fraudulently combined with Weir, Hoth, and Banks to defraud the creditors of the estate of his intestate, and had fraudulently obtained an order of sale, and by falsely and fraudulently misrepresenting the title and value of the land prevented any other person from bidding but his own confederates; that they at this fraudulent sale had become the purchasers of the land and slaves belonging to the succession, and that the said sale was so fraudulently made to these purchasers at prices greatly below the real value of the property; that the securities of Dobbin were worth but little, and not able to answer in damages for his maladministration. He prays that Dobbin be enjoined from making title to the property so sold, and that his confederates, the purchasers, be enjoined from selling or conveying any of the said property; that the sale be annulled and set aside, aud that the claim be allowed by the administrator and the land be decreed to be conveyed to him, and damages for the long detention anc loss. The injunction prayed for was granted.
    Dobbin demurred to the petition for want of jurisdiction in the court of the subject-matter, as it belonged to the Probate Court. He answered, denying all fraud, and asserting that the sale was fairly conducted; and he set up the statute of limitations against the claim on which the petition was founded,
    Weir and Hoth answered, denying all fraud and combination, and alleging that they had become the purchasers fairly and at fair prices.
    Banks answered, denying ail fraud and combination with the other defendants, and denying that he had been a purchaser or in any way concerned in the sale.
    
      A jury was waived and tbe canse submitted to tbe decision of the judge on tbe bill, answers, exhibits, and evidence. The allegations contained in tiie petition, of improper means used by Dobbin, Weir, and Hotli to prevent competition and other bidders than Weir and Hotli, were fully sustained by the evidence. Tbe judge decreed that the sales should be annulled and set aside; that the injunction should be perpetuated as to Dobbin, Weir, and Iloth and dismissed as to Banks; that tiie claim of the petitioner for twenty-five hundred dollars, tiie purchase-money, with ñve per cent, interest from the time the money was advanced, should be allowed to the petitioner against the estate of tbe intestate, to be paid in the due course of the administration.
    The administrator Dobbin prosecuted this writ of error.
    
      Alexander, for plaintiff in error.
    I. The petition is multifarious. (1 Dan. Chan. Prac., 432; Story 35q. PI., 530-540; 3 Mylne & C. R., 85; 1 Id., 003; Litt. Sel. Cas., 320; 2 Bibb. Tí., 314; 8 Pet. It., 123; 1 Johns. Ch. R., 349, 437, 000; 0 Id., 103; 0 Da. It., ISO; 5 Cow. It., 80 ; 3 How., IT. S. R., 412; 2 Id., 019, 642 ; 2 Mass. R., 181; 1 Madd. R., 294.)
    II. Tiie petitioner cannot maintain any action upon the bond. Where limitation precludes damages equity will not decree specific performance. (Allen v. Beal’s Heirs, 3 Marsh R., 555 ; 2 J. J. Marsh R., 107, 178.)
    The land office was opened in August, 1838. An acknowledgment by an administrator cannot take a claim out of the statute of limitations. 'Ang. Dim., 293, 294; 1 Poth. Obi., 413, 414.)
    III. The Probate Court was a court of competent jurisdiction, and its jurisdiction over the estate, had attached. The subject-matter of tbe present suit was res judicata at tiie filing of the petition, and could not be affected by a collateral proceeding. (Denison v. Ingram, Dallam, 519; Sutherland v. De Leon, 1 Tex. R., 250; Lube Eq. PI., 115, notes.)
    
      A. P. Thompson, also for plaintiff in error.
    The cause of action sued on below is barred by the statute of limitations. It accrued 1st August, 1838. Tiie intestate who executed the instrument sued on died 30th of August, 1844. It was first presented to his administrator 23d January, 1845, and suit not filed tili 31st January, 1840. It is barred by l lie 1st section of the statute. (Acts of 1841, p. 63.) That section is peremptory and clear in its language, and applies 1 o all contracts, whether made prior or subsequent to its passage. (Ross v. Duval, 13 Pet. R., 64; 6 La. R., 074; 11 Id., 60; Gautier v. Franklin, 1 Tex. R., 732.)
    An arithmetical calculation shows in this case that nearly one-sixth of the time required by the old law had elapsed before its repeal, which, being deducted from four years from the passage of the new act, bars the claim four months before the death of the intestate.
    The pretended acknowledgment of the administrator cannot take the case out of the statute, even if the acknowledgment were a good one, which we deny. He is not the person to be charged thereby, (Acts of 1841, p. 163, sec. 12.) and the courts are bound officially to protect the defenses of intestates in this respect. (Id., see. 7.)
    
      Webb, for defendant in error.
    I. If the view which I have taken of this portion of the decree (that the sale was fraudulent and void) be correct, then there remains only to inquire whether that portion of it which establishes the claim of John L. Bryan as a valid, subsisting claim against the estate of Berry is in conformity with law and the facts of the case or not. This branch of the inquiry involves two questions : 1st, Was the claim of Bryan a legal and subsisting one against the estate of Berry? 2d, Did the District Court have jurisdiction of the subject-matter as presented by the petition ?
    The answer of Dobbin denies that Bryan held any legal claim against the estate. The testimony shows that on the lGth day of February, 1837, Bryan advanced to Berry, in cash, the sum of twenty-five hundred dollars; that Berry then executed to him his bond, by which he bound himself in the penalty of six thousand dollars to obtain the Government titles to two and a half leagues of land and convey them to him, Bryan, by deed, within six months after the opening of the land office; that Berry died on the 30th of August, 1S44, and that this bond was presented to his administrator, Shackel-ford, on the, 23d of January, 1S45, who made an indorsement on the bade of it in the following words: “This instrument presented and acknowledged to be still unsatisfied by A. M. Berry or the estate, since iris death.”
    It is urged, however, in opposition to the legality of this claim, that it was barred by the statute of limitations previous to its being presented to Shackel-ford, the administrator, and that therefore the acknowledgment of the administrator was illegal and void. The. obligee of the bond hacl no right to demand of the obligor the performance of the condition until the expiration of six months after the land office was opened. It is a historical fact which this court will notice, and of which the public archives of the nation furnish the most ample evidence, that the land office was not practically open six months for the issuing of patents until some lime in the year 1844. The operation of the 39th section of the land law of 1837, (p. 75,) which required the land offices to he opened in February, 1838, so far as the same related to the issuing of titles by the Commissioner of the General Land Office, was suspended by the order of President Houston, ami remained suspended under the renewed order of President Lamar, until the passage of the act of 1840, “to detect fraudulent land certificates and to provide for issuing patents to legal claimants,” (vol. 4, p. 139.) The 5th section of this act prohibited the commissioner from issuing patents upon any certificate unless t.lio same was reported by the board appointed under it as legal and genuine; and consequently no patent could issue until those boards had made their reports. Some of these reports were not made until a very [2§3] short time before the invasion of Vasqucz in the spring of 1842; immediately after which the land office was closed by proclamation, and remained closed' until the return of the commissioner to the seat of Government in 1844. (See President Houston’s Message, May 6, 1838, pamph., p. 23; President Lamar’s Message, November, 1S39; Certificate of Commissioner of General Land Office.) So that at no time from the execution of the bond by Berry until the year 1844 did he have the six months allowed him in the bond to procure the titles; and consequently at no time previous to 1844 could Bryan have sued him and recovered for a breach of his covenant.
    But suppose it he conceded that the General Land Office was opened for the issuing of patents within the meaning of the parties to this contract upon the reception of the first report made by the board of travelling commissioners: still this claim was not barred when presented. The first report was not made until the 1st of June, 1840. Six months from that time would have brought it to the 1st of December, 1840, when Bryan might have demanded a performance of the condition of the bond. The record shows that Berry died the 30th of August, 1844, in less than four years from the time that Bryan’s right of action accrued. So that if tiro statute commenced running from the time the right of action did accrue, still the claim was not barred at the death of Berry, and consequent^ was not barred when presented to the administrator a few months afterwards. But it will hardly be contended that the statute commenced running in this case before the passage of the act of limitations on the 5th of February, 1841. At the time the right of action in this case accrued there was no statute of limitations in the country to commence running. It therefore does not come within the rule or reason of the rule laid down'by this court in the case of Gautier v. Franklin. In that case the statute had commenced to run on both notes before the repeal of the old law, and the subsequent repeal was construed not to stop it.
    
      II. As to the jurisdiction of the court. The District Courts of this State have as full and ample equity jurisdiction as the courts of chancery in England. The three principal subjects out of which that jurisdiction arises, either here or there, are fraud, mistake, and trust. (1 Story Eq., pp. 67, 194, 195; Massie v. Watts, 6 Or. It., 148, 158.) In this case the petition presented a most glaring and flagitious fraud, against which it was impossible for the party to obtain a remedy except in a court of equity. (1 Story Eq., pp. 197, 198.) The whole record shows that no remedy was to be expected or could be obtained in tile Court of Probate, and that fact alone gave jurisdiction to the Di. trift Court as a court of equity. Besides, Dobbin, the administrator, refused, as 1 lis answer shows, to receive or admit the claim of Bryan as a subsisting one against the estate of Berry. He was therefore compelled to resort to t suit in the District Court to establish it, and that court, having thus acquired juris’lotion over the subject, had a right to decide every question arising in the case between the parties. (Probate Law 1840, p. 116, sec. 19.)
   Lipscomb, J.

We will first inquire whether the demurrer to the jurisdiction was well taken. If the facts stated in the petition are to be considered as true, it seems to me that the jurisdiction of the District Court can be sustained on two distinct grounds. The first is that the fraudulent combination between tire administrator and his confederates, in preventing competition and enabling these purchasers to bid iu the property at such an immense inadequacy of price, on which grounds the sales were sought to be set aside, could not have been inquired inlo and its results defeated anywhere hut in a jurisdiction where the principles of equity could be administered and the appropriate relief afforded. Fraudulent combination has always been a fruitful source for the exercise of chancery jurisdiction, and although franc! is not a matter exclusively for the cognizance of a court of chancery, because where it can fairly be presented as a fact courts of law would have concurrent jurisdiction, yet it most frequently occurs that its consequences can be obviated and defeated effectually nowhere but in a court where the principles of equity are administered. The Probate Court, from the limited jurisdiction it exercises, cannot well investigate the facts constituting the fraud; and even if it could set aside a sale on that ground, it cotild not so well protect the rights and various interests that may have resulted from such fraud.

The other ground on which it appears that the jurisdiction of the District Court is clearly sustained is on strict principles of law. The petitioner having stated that the claim was disallowed and rejected by the administrator de bonis non, and that he had disclaimed the recognition of this claim, made by the former administrator, it seems to me that, under the statute then in force, the petitioner was compelled to resort to the District Court for the establishment of it by an adjudication of its correctness. It seems to me, therefore, that the jurisdiction of the court is clearly sustainable on either of the grounds noticed.

There has been another ground presented by the counsel for the plaintiff in error on which he supposes the demurrer ought to have been sustained in the court below. He says the petition is multifarious. This is an objection that I liave thought can seldom be sustained, and entitled to no liberality of construetion in its'favor. It savors so much of the technicality of a common-law court that it must have found its standing in chancery practice as an interloper from the common-law practice. If the petition confines itself to the adjustment of all the equities arising between the parties, however various those equities may be in their origin, I know of no sound principle governing the exercise of chancery j urisdiction that would restrain the court from disposing of all such matters , without driving the party to another and distinct suit. If, however, there weref matters contained in the petition foreign to the relief sought, it could not be j-3 reached by a general demurrer. Such matters should be specially pointed out, / and if the objections were well taken, could be stricken out without destroying the matter that was well presented. In no aspect, however, can the petition in tills case be considered obnoxious to the objection raised by the counsel for the plaintiff in error.

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We will next in order consider the sufficiency of the defense of the statute of limitations. It will be recollected that the condition of the bond sued on was not broken until the expiration of six months from the opening’ of the general land office. The subject of the condition shows most conclusively what was meant by opening the land office : it was opening it for the issue of patents or the titles by patents issued on the headlights of persons entitled to such Government title papers. If the suit had been brought before the time so specified in the bond, it could not have been sustained, because the conditions would not have been broken. Now, although by an act of Congress a much earlier time was fixed for the “opening” of the land office in the sense of that term contemplated by the parties, yet we are authorized to know from the history of our own times, constituting a part of our political history, that the land office was not practically opened for such purposes until some time in 1844. That its operation in this respect was restrained by different acts of the Legislature, by proclamation, and by the removal of the Government for a time from the city of Austin. The obligor could have urged these facts had he been sued sooner, and could have shown that until that time the contingency had not happened on which he was to fulfill the conditions of his bond. Under this view of the question it is not material to know the exact time when the land office should be considered “opened,” as it is certain that it was not at a time early enough to complete the running of the statute before the commencement of the suit in this case. And if there was any doubt upon the subject, it would be entirely dispelled by a part of the evidence furnished by the record. On the 11th of May, 1844, the year in which Berry died, he writes from Galveston to his friend in Kentucky, expressing his wish to be in Kentucky, but is determined not to leave Texas until he had obtained all of his patents. 1-Ie expresses a belief that this can be done in about six weeks, as he “ lias just been informed that the Commissioner of the General Land Office has obtained possession of the archives.” This is conclusive against him of the existence of the impediments to procuring the patent, and he could not say that the land office had been practically opened for the issue of patents prior to that time. This view of the subject dispenses with the necessity for discussing and deciding whether the obligation sued on is a moneyed contract coming within the meaning of the statute of limitations. This is a question of importance, involving a large amount of interests in this State, and it has never been discussed in this court. We should have felt reluctant to decide it without the aid of a full discussion, and are happy to he relieved from that necessity in this case.

Judgment affirmed.  