Boyd v. Orr

• Decision Date: 14 April 1943
• Docket Number: No. 6033.,6033.
• Citation: 170 S.W.2d 829
• Parties: BOYD et al. v. ORR.
• Court: Texas Court of Appeals

170 S.W.2d 829

BOYD et al. v. ORR.

No. 6033.

Court of Civil Appeals of Texas. Texarkana.

April 14, 1943.

Rehearing Denied April 22, 1943.

Appeal from District Court, Wood County; Bascom Gist, Judge.

Action by B. B. Orr against Jewel M. Boyd and others in trespass to try title to an oil and gas leasehold estate, wherein defendants filed cross-action to cancel the lease and alleged action in trespass to try title. From a judgment for plaintiff, Idounia Boyd, as guardian, appeals.

Affirmed.

Hurst, Leak & Burke and R. L. Whitehead, all of Longview, and C. W. Vickery, of Quitman, for appellant.

Florence, Florence & Meredith, of Gilmer, for appellee.

JOHNSON, Chief Justice.

This suit involves the title to the 7/8 oil and gas leasehold estate covering an undivided 1/2, less 1/32, interest in 10 acres of land situated in Wood County, Texas. The land was conveyed to "T. H. Boyd and wife, Idounia Boyd," by Rupert A. and Rubye Mae Cobb in 1936, in consideration of $210 cash in hand paid, and the execution of one note for $110 bearing 10% interest and due one year from date. The vendor's lien was retained in the note and in the deed against "only the Northeast 7 acres" of the 10 acres, securing payment of the note. The deed reserved to the vendors an undivided 1/32 of the minerals in the 10 acres. It was duly recorded. T. H. Boyd built a house on the land and occupied it with his family as their homestead until he died in 1939, intestate. His widow, Idounia Boyd, and their nine children, all minors, were his sole heirs. They have since lived on the land as their homestead. The community estate owed debts, a portion of which was due to state and county for taxes, amounting to $200. November 15, 1940, Idounia was appointed temporary guardian of the estate of the children, in the County Court of Wood County, cause No. 2553 on the docket of said court. She filed a bond and oath. The bond was approved. No further orders were entered until January 1, 1941, when upon application of Idounia alleging invalidity of the proceedings, an order was entered setting aside and vacating the order appointing her temporary guardian. Thereafter, on the same date, Idounia filed in said county court her application for appointment as community administratrix of the community estate of herself and deceased husband, T. H. Boyd. Appraisers were appointed and a report of the inventory, appraisement, and list of claims, and the community survivor's bond, were duly filed and approved, and the orders entered authorizing Idounia as such community survivor to control, manage, and dispose of such community estate according to law, same being cause No. 2563 on the docket of said court. The 10 acres of land was listed and appraised as community property. On the same day, Idounia as such qualified survivor executed an oil and gas lease, in usual terms, covering an undivided 1/2, less 1/32, interest in the 10 acres of land to B. B. Orr, in consideration of $3,000 cash, reserving to the lessor the usual 1/8 royalty. (Prior to qualifying as community survivor, Idounia had conveyed undivided mineral interests in the land aggregating 1/2 or more.)

April 21, 1941, on application of Idounia, an order was entered in said county court closing said community administration and discharging Idounia and the sureties on her bond from further liability. On the same date Idounia was appointed, and qualified, as guardian of the estate of said minors, being cause No. 2594 on the docket of said court.

April 28, 1941, Jewel Boyd, one of the nine minor children, having had her disabilities as a minor removed, executed an oil and gas lease purporting to cover her "undivided interest" in the 10 acres.

July 3, 1941, B. B. Orr filed the present suit in the District Court of Wood County against Jewel Boyd and Idounia Boyd, and against the eight remaining minor children, alleging an action of trespass to try title to said oil and gas leasehold estate in the 10 acres of land purchased by him from Idounia Boyd as community survivor.

March 6, 1942, Idounia as guardian of the estate of the eight remaining minor children filed in the County Court of Wood County a bill of review seeking to set aside, vacate and have declared for naught, all the orders in cause No. 2563 wherein she had qualified as community survivor. The bill of review is based upon the alleged grounds, in substance, that the county court was without jurisdiction or power in entering its order setting aside and vacating the appointment of Idounia as temporary guardian in cause No. 2553, because the 10 acres of land involved had been purchased with separate funds of T. H. Boyd, deceased, and was therefore his separate property; that the judgment of the county court purporting to set aside said temporary guardianship, thus having been entered without jurisdiction, was void, hence said temporary guardianship was still pending; that because of such pendency of said temporary guardianship in said cause No. 2553, and because the land involved was the separate property of T. H. Boyd, deceased, the county court was without jurisdiction to enter the orders qualifying Idounia as community survivor in cause No. 2563; therefore the orders in No. 2563, qualifying Idounia as community survivor, should now be vacated and declared for naught. B. B. Orr answered the bill of review. Upon hearing in the county court the bill of review was denied. On appeal to the district court the bill of review was consolidated with the trespass to try title suit filed by B. B. Orr. No issue is raised as to the sufficiency of the pleadings filed in the consolidated suit, wherein Orr as plaintiff asserted his action in trespass to try title to said leasehold estate, alleged that he was an innocent purchaser, and had made valuable and permanent improvements to the extent of drilling a producing well on the land, and specially denied the facts pleaded by defendants. The defendants pleaded not guilty, asserted the bill of review, and by cross-action sought cancellation of the oil and gas lease, and alleged an action of trespass to try title. Trial of the cause before the court without a jury resulted in a judgment for plaintiff. Idounia as guardian of the eight remaining minor children appealed. The trial judge filed his findings of fact and conclusions of law.

Appellant rests her prayer for reversal of the trial court's judgment upon 11 points, the answers to which, as far as material, are included in a decision of the following three questions: (1) Did the trial court err in refusing to hold that the county court was without jurisdiction to enter the orders in cause No. 2563, wherein Idounia qualified as community survivor? (2) Did the trial court err in holding that appellee, Orr, was an innocent purchaser? (3) Did the trial court err in sustaining appellee's objections to the following question (and excluding the witness' answer thereto) propounded to appellant: "What would you have told B. B. Orr if he had inquired of you as to how you were claiming title to the land?" To which the witness, if permitted, would have answered: "I would have told him, `bought with government money.' I did all the rest that asked."

The first question above stated is raised by appellant's contention, in substance that, "A", because of the alleged pendency of the temporary guardianship, and "B", because the land was the separate property of T. H. Boyd, deceased, the county court was without jurisdiction to enter its order in cause No. 2563 qualifying...