Bouldin v. Miller

• Decision Date: 10 December 1894
• Citation: 28 S.W. 940
• Parties: BOULDIN et al. v. MILLER.
• Court: Texas Supreme Court

28 S.W. 940

BOULDIN et al. v. MILLER.

Supreme Court of Texas.

December 10, 1894.

Error to court of civil appeals, Second supreme judicial district.

Action by J. E. Bouldin and another against Will Miller, Jr. From a judgment of the court of civil appeals (26 S. W. 133) affirming a judgment for defendant, plaintiffs bring error. Affirmed.

J. M. Moore and J. V. Meek, for plaintiffs in error. Carswell & Woody and Bullock & Lillard, for defendant in error.

DENMAN, J.

Plaintiffs in error, James and Powhattan Bouldin, sued defendant, Miller, in trespass to try title to recover the land in controversy, and defendant pleaded not guilty. Thereupon plaintiffs filed a paper alleging no facts, but offering to refund any sum the court might find chargeable to them on account of any money received by their alleged guardian who sold the land. This paper presents no issue, and the case will be considered as one of ordinary trespass to try title, with plea of not guilty.

James E. Bouldin, common source of title, in 1876, in due form of law, executed a deed which, divested of unnecessary verbiage, reads as follows: "I, James E. Bouldin, in consideration of natural love and affection I have for my grandchildren, sons of David W. and Bell Bouldin, do hereby give, grant, alien, and convey unto Charles, David, Powhattan, and James Bouldin, in equal, undivided equal portions, the following tracts or parcels of land, to be held in common and unsold until the youngest of said boys shall become of age, — that is, the age of twenty-one years, — known and described as follows, to wit." Then follow proper description of the land in controversy, and usual habendum and warranty clauses unto the said grantees, "their heirs and assigns, forever." It appears from the record that prior to the time the youngest of said grantees arrived at the age of 21, and before the sale of plaintiffs' lands by order of probate court, hereinafter referred to, the two grantees, Charles and David Bouldin having deceased, leaving said David W. and Bell Bouldin their sole heirs, said David W. and Bell Bouldin conveyed to defendant all their interest in the land in controversy. The probate court of Wise county convened July 21, 1884, and adjourned August 7, 1884. On application of plaintiffs, who were then over 14 years of age, and capable of selecting a guardian under our law, said court, on the 2d day of August, 1884, appointed a guardian of the estates of plaintiffs, which guardian on the same day qualified according to law, and filed an inventory. The next term of said court convened September 15, and adjourned October 6, 1884. The record shows an order of sale to have been entered upon the minutes of said court directing the sale of the land in controversy by said guardian. This order is not dated, and the court of civil appeals finds as a question of fact that the record of this cause "does not show affirmatively that the order of sale was made without a citation or the possibility of a citation, served for the length of time required under article 2575 of the Revised Statutes." The statute cited requires notice of applications to sell a ward's land to be given to "all persons interested in the ward," by posting same "for at least twenty days before the first day of the term of the court to which the citation is made returnable." The guardian's report of sale was confirmed by decree of the court filed October 4, 1884, which recites that it appeared to the court that the sale had been made "in conformity with law and the order of the court heretofore made." The defendant deraigns title by mesne conveyances from the purchaser at such sale. The court below rendered judgment for defendant, and the court of civil appeals affirmed same.

The record shows that, at the time the probate proceedings were had, plaintiffs were residents of California; and therefore plaintiffs claim that the probate court of Wise county, Tex., though it had jurisdiction to appoint a guardian, had no jurisdiction to order a sale for the purpose of educating the wards, but should have confined its orders to preservation of the estate. The statute authorizing the appointment of guardians in such cases expressly provides for the sending of money abroad to educate the nonresident minor. The nonresident minor can only dispose of his estate through the proceedings of the probate courts of Texas, and if such courts, when authorized by statute, cannot make valid disposition of the minor's land for his education, then he might be forced to the alternative of moving into the state or foregoing the advantages of an education. We cannot so construe the law as to make the preservation of the property of more importance than the education of the ward. Rev. St. art. 2515. The probate court being a court of general jurisdiction, within the scope of the powers conferred upon it in matters of guardianship, its proceedings cannot be attacked collaterally for fraud, as seems to have been attempted in this case, but can only be attacked for such cause in appropriate proceedings instituted for that purpose. Therefore we cannot consider any assignment raising that issue. Weems v. Masterson, 80 Tex. 45, 15 S. W. 590.

Plaintiffs contend that the probate court had no jurisdiction to order the sale of the property, for the reason that no notice of the application to sell was given, as required by article 2575 of the Revised Statutes, above cited. We do not deem it our duty to consider or express an opinion as to whether notice of the application to sell realty was, at the time...