Birdwell v. American Bonding Co.

• Decision Date: 27 May 1960
• Docket Number: No. 16104,16104
• Citation: 337 S.W.2d 120
• Parties: William BIRDWELL et al., Appellants, v. AMERICAN BONDING COMPANY et al., Appellees. William BIRDWELL et al., Appellants, v. A. B. LARIMORE et al., Appellees.
• Court: Texas Court of Appeals

Page 120

337 S.W.2d 120

William BIRDWELL et al., Appellants, v. AMERICAN BONDING COMPANY et al., Appellees.

William BIRDWELL et al., Appellants, v. A. B. LARIMORE et al., Appellees.

No. 16104.

Court of Civil Appeals of Texas, Fort Worth.

May 27, 1960.

Rehearing Denied June 24, 1960.

Sidney E. Dawson and Walter L. Wray, Dallas, for appellants.

Jennings & Montgomery, and Frank Jennings, Graham, for appellees American Bonding Company and American Surety Company.

Henry B. Penix, Wichita Falls, for appellee Harry C. Weeks.

Thornton & Thornton and E. G. Thornton, Olney, for appellee A. B. Larimore.

MASSEY, Chief Justice.

The cases before us on appeal were consolidated by order entered in the District Court, Young County, Texas, and considered together at one hearing, following which a single judgment was entered.

In view of the fact that we have reached the conclusion that the judgment of the trial court was erroneous in one case and correct in the other we have concluded that convenience in handling requires severance for purposes of judgment by this court. Convenience of discussion in the opinion, however, will be upon all phases of both cases, with distinctions to be made indicated where necessary.

William Birdwell and his sister, Lee Birdwell Green, were plaintiffs in both cases. While they were minors they inherited an interest in the estate of a grandfather. Such condition necessitated the appointment of a guardian of their estate(s). Their father, G. W. Birdwell, applied for and was duly appointed guardian of the persons and estates of said minors by order of the Probate Court of Bell County, Texas, dated August 15, 1906. At the time, William Birdwell was three years of age and Lee Birdwell was nine years of age. Said guardian tendered and had approved a general guardian's bond in the sum of $3,000, upon which bond two individuals of Bell County were the sureties. Said bond was filed of record in the Probate Court of Bell County. Subsequently, said sureties were ordered released as such and a new bond was tendered and approved by the guardian, on which the American Bonding Company of Baltimore was the surety. The amount of the bond was unchanged. The effective date of the bond was October 9, 1909. Said bond was filed of record in the Probate Court of Bell County. The bond was a general guardian's bond and not a sale bond.

Within three months following the date American Bonding Company became the surety, the guardian, pursuant to authority of the Probate Court, proceeded to effect a sale of the interest in real estate owned by the minors. About the same time their guardian applied to the court for an allowance of $100 per year for each of the minors for use in their support, education and maintenance. Incident to this application the guardian represented that he was not financially able to support, educate and maintain the plaintiffs. An order was entered on January 10, 1910, granting the application, with the further provision in the order that '* * * this order shall be in force and effect until otherwise ordered.'

On or prior to March 5, 1910, the American Bonding Company filed application that the guardian be required to give a new bond, and that it be discharged from all liability for future acts of the guardian (G. W. Birdwell), '* * * as provided for by Articles 1952 et seq. and 2608 of Sayles' Texas Civil Statutes.' ¹ The guardian waived issuance and service of citation upon the application. On date of April 4, 1910, order of the court was entered requiring the guardian to '* * * give a new bond in the amount of Three Thousand dollars, on or before the 20 day of April, 1910, with surety or sureties to be approved by this Court.'

On October 17, 1910, the guardian filed application for the removal of the proceedings in guardianship to Young County, Texas, to which county he had moved with the intention of permanently residing thereat. Representations in the application were: '* * * he (petitioner) is still the duly qualified and acting Guardian * * *; that he is still keeping and maintaining said minors and is able, ready and willing to continue to provide for the education, maintenance and support of said Minors; * * * he is able to and will make a good and sufficient bond as the law directs, as such guardian in this county of Young; * * * your applicant for removal of his said guardianship is in no way disqualified and is a proper person to still act as guardian of the persons and estate of said minors.'

There appears to be no order in the minutes of the Probate Court of Bell County, Texas acting upon the application for removal of the guardianship to Young County, but obviously it was so removed, for in August of 1913 the matter of the Guardianship of said minors was on the docket as No. 436 in the County Court of Young County. The record before the trial court (District Court) from which the appeal before us was taken contained a certificate of the County Clerk of Bell County, dated December 21, 1955, to the effect that said clerk had made a thorough check of the index and records of the guardianship, as same then existed in Bell County, and had reason to believe the transcript was complete. Neither does there appear in the records any matter relative to the American Bonding Company bond, following the Order of March 5, 1910 (when the guardian was ordered to give a new bond on or before April 20, 1910). The representations in the application for the transfer of the Guardianship are of course those of the guardian himself. It is to be observed that we cannot affirmatively know from the state of the aforesaid records, in themselves, that the American Bonding Company was released as a surety on or before April 20, 1910,--or afterward but before October 17, 1910, when application for the transfer to Young County was made,--or afterward but before the first mention of the Guardianship appears of record in the Probate Court of Young County.

We do know that on August 19, 1911, the said minors (through certain construction to be made, propriety of which is not a matter at issue between the parties) received title to all the surface and three-fourths the minerals thereunder in and to a certain 80 acre tract of land in the shape of a square in Young County and being in the northwest corner of T. E. & L. Co. Survey No. 2250. The grantor in said deed effectively 'severed' the one-fourth interest in the minerals under the land by a 'reservation' of them out of the transfer effected by the grant. The three-fourths of the minerals which did pass to the plaintiffs, then minors, perforce the provisions of the instrument of conveyance, were not 'severed' from the surface which was conveyed to them, as will be later commented upon in this opinion.

On August 27, 1913, the guardian, G. W. Birdwell, filed an application in the Probate Court of Young County, Texas to sell the same land received under the deed of August 19, 1911. The sworn application recited that '* * * all of the personal estate of said wards has been exhausted and the proceeds of said sale are insufficient to maintain said wards. * * * Your applicant would further represent and show to the court that it would be most advantageous to sell said land at private sale partly for cash and partly on time.'

On August 16, 1913, the guardian executed, along with American Surety Company of New York, surety, a bond in the form of a general guardian's bond in the sum of $2,500. Same was approved by the County Judge of Young County on the same date, and was filed for record with the County Clerk. Whether there was or was not any record in the Young County Probate Court of any earlier bond in the Guardianship proceedings is not shown by any certificate of the custodian of said records. The record does not reflect the date when the Probate Court of Young County took jurisdiction of the guardianship in question, under its No. 436. There does not appear in the record made below any Order requiring a new general guardian's bond. It is worthy of note that the bond with American Surety Company as surety, was on file for eleven (11) days before the date of August 27, 1913, when the guardian's application to sell real estate was filed.

On October 13, 1913, the application aforementioned, to sell real estate, was heard and the court in its Order stated that '* * * it further appearing to the court that said land ought to be sold for part cash and part on time * * * and that it is necessary that the same should be sold for the support and maintenance of said wards.' The Order entered directed that the guardian sell the land in question at a private sale '* * * on such terms as he can obtain and that he make his report of such sale * * * in accordance with the law.' On the same date as the Order the guardian made the sale of the land in question to J. M. Kirkland at private sale. On October 20, 1913, the court entered an order approving and confirming the sale and directing that it be recorded by the clerk, and that the guardian make proper conveyance of the land in question to J. M. Kirkland upon his (Kirkland's) compliance with the terms of the sale, set out as being for the total amount of '* * * $2,000.00 of which $512.50 was cash and the balance as follows: the assumption of one mortgage for $800.00 held by the Bonnors of Dallas Texas and one note for $200.00 due Oct. 15, 1915, one note for $200.00 due Oct. 15, 1916, and one note for the sum of $287.50 due Oct. 15, 1917 * * *.' It appears that the mortgage which was provided to be assumed was security for the payment of notes which exceeded said $800 assumed in connection with the guardian's purchase of the land on August 19, 1911.

It might be well to here note that in a deposition given by J. M. Kirkland on March 18, 1955, said deponent, in answer to an interrogatory inquiring whether any part of the $512.50 'cash' consideration for the conveyance aforementioned (under Order of the Probate Court...