1. Conflict in Decisions as Ground for Writ of Error.
A decision is not in conflict with another when only conflicting with a paragraph in such opinion upon a matter not in issue or necessary to the decision. See example .............................................. 472
2. Same — Power of Independent Executor to Sell Land.
The Court of Civil Appeals announced the proposition, that "in order to sustain the validity of a sale of land by an executor under a will which empowers him to administer the estate free from the control of the County Court, and to sell land in order to pay debts, the existence of debts against the estate must be proved." In Cooper v. Horner, 62 Tex. 363, it was said: "The purchaser of real estate under a power of sale to pay debts is not bound to investigate whether there are debts, nor to see to the application of the purchase money." It appearing in the record in the latter case that debts existed at the time of the sale, the proposition was not necessary to the decision of the case. The two decisions can not be held to be conflicting................................ 472
GAINES, CHIEF JUSTICE.
This is an application for a writ of error to reverse a judgment of the Court of Civil Appeals of the Fifth Supreme Judicial District, which reversed the judgment of the trial court and remanded the cause. In order to show jurisdiction in this court, it is alleged in the application that the opinion of the Court of Civil Appeals overrules the decision of this court in Cooper v. Horner, 62 Tex. 363. It is held by the Court of Civil Appeals in this case, that in order to sustain the validity of a sale of land by an executor under a will which empowers him to administer the estate free from the control of the County Court and to sell lands in order to pay debts, the existence of debts against the estate must be proved. In Cooper v. Horner the court say: "The purchaser of real estate under a power of sale to pay debts is not bound to investigate whether there are debts, nor to see to the application of the purchase money;" but as is pointed out in the opinion of the Court of Civil Appeals, the announcement of that proposition was not necessary to the decision of that case. The trial court in that case found that there were debts to the amount of $1373.17 subsisting against the estate at the time of the sale, and the Supreme Court sustained this finding. It is clear, therefore, that the question was not involved in the decision of that case.
Since the decision in this case does not overrule the decision of the Supreme Court in the case relied upon to show jurisdiction in this court, this court is without jurisdiction, and the application is therefore dismissed.
Dismissed.
Delivered January 31, 1895.