Burton v. McGuire, 1168-5146.

• Decision Date: 22 July 1931
• Docket Number: No. 1168-5146.,1168-5146.
• Citation: 41 S.W.2d 238
• Parties: BURTON et al. v. McGUIRE et al.
• Court: Texas Supreme Court

41 S.W.2d 238

BURTON et al. v. McGUIRE et al.

No. 1168-5146.

Commission of Appeals of Texas, Section A.

July 22, 1931.

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

Suit by F. A. Burton and others against A. F. McGuire and others. The Court of Civil Appeals [3 S.W.(2d) 576] affirmed a judgment for defendants, and F. A. Burton and others bring error.

Affirmed.

Dies, Stephenson & Dies, of Orange, and Howth, Adams & Hart, of Beaumont, for plaintiffs in error.

A. J. Schnitzel, Holland & Holland, George E. Holland, and Monroe Chapman, all of Orange, W. W. Cruse, of Beaumont, Hollis M. Kinard, of Orange, C. A. Toler, of Beaumont, Adams & Bruce, of Orange, T. L. Foster, J. W. Timmins, and Joiner Cartwright, all of Dallas, and Ben H. Powell and Woodward, Hart, Gay & Hard, all of Austin, for defendants in error.

CRITZ, J.

As shown by the opinion of the Court of Civil Appeals, the record in this case is unusually large, even for this court. The application for the writ of error contains about 283 full legal sized typewritten pages; the brief of appellant filed in the Court of Civil Appeals contains 577 pages; the brief of the Sun Oil Company, which is printed, contains 227 pages; the statement of facts contains about 550 pages; the transcript about 350 pages; there are about 85 plaintiffs in error, and about 50 defendants in error. We mention the above matters, as did the Court of Civil Appeals, to show the tremendous task presented to this court by this appeal, and to demonstrate that it is utterly out of the question for this court to discuss all of the many assignments presented in the application.

On final presentation of the case in the Supreme Court, the parties have each filed supplemental briefs and arguments presenting in more condensed form their several contentions, and have thus greatly aided us in digesting this record. In this opinion, we are generally confining ourselves to the issues presented and discussed in these supplemental briefs and arguments.

This suit was tried in the district court of Orange county, Tex., by the plaintiffs in error, Burton et al., against defendants in error, McGuire et al., in the form of trespass to try title. The land involved consists of 180 acres on the Bradley Garner survey, 320 acres, more or less, on the Aaron Nelson survey, and an undivided interest in the Sarah M. Luce survey and the Bradley Garner survey. Trial in the district court before a jury on special issues resulted in a verdict and judgment for all the defendants. On appeal, this judgment was affirmed by the Court of Civil Appeals at Beaumont in an exhaustive and well-considered opinion by Judge Walker. 3 S.W.(2d) 576. The case is in the Supreme Court on writ of error granted on application of Burton et al.

The Court of Civil Appeals has made a very excellent and comprehensive statement of the nature and result of this case. In the interest of brevity, we refer to and adopt the statement of that court. We, however, will make such further statements in the course of this opinion as are necessary to demonstrate the matters discussed. However, the immensity of this record and the numerous issues raised make it well-nigh impossible to make a complete statement of all of the issues involved.

As we gather from this record, the plaintiffs in the district court, also plaintiffs in error here, may be divided into three general groups, viz.: The Walea heirs, the Smith heirs, and Mattie E. Wingate.

The Walea heirs are seeking to recover 180 acres of land off the south end of the Garner survey, and 320 acres, more or less, off the north end of the Nelson survey. The Walea heirs assert no title to the Luce survey except where it is contended the two surveys conflict.

The Smith heirs claim 60 acres of land on the Nelson survey. Also they, along with the Walea heirs, claim a 30-acre tract and a 43-acre tract on the Walker. The jury found against the claim of the Smith heirs to the 60 acres on the defendants' pleas of limitation, and this verdict is amply supported by the evidence. We refer to and approve the holding of the Court of Civil Appeals as to this issue, and shall not again refer to it.

Mattie E. Wingate, one of the plaintiffs in error, is seeking to recover an undivided one-third interest in the Luce survey, and an undivided interest in the Garner survey. This claim is based upon the fact that Mrs. Agnes B. Wingate died seized and possessed of the entire Luce survey except 150 acres. She also owned at the time of her death an undivided one-third interest in a tract of about 513 acres on the Garner survey. Mattie E. Wingate, surviving daughter, seeks to recover a one-third interest in each of these tracts, which were sold through guardianship proceedings.

The defendants in error hold the lands in question, disregarding the issues of conflicts and overlapping surveys, under chains of title originating in the defendants in error and their privies. As links in these chains appear certain court proceedings and judgments which are necessary to connect the chains. Plaintiffs in error seek to break these chains by attacking these judgments and proceedings. If such attacks are successful, the chains are broken, and, in the absence of limitation, the titles are left in certain of the plaintiffs in error. We pause here to remark that all of these attacks are collateral.

We shall first discuss and dispose of the attacks made by the plaintiffs in error, who are grouped under the general name of Walea heirs.

Plaintiffs in error attack a certain judgment of partition entered by the district court of Orange county, Tex., on December 12, 1872, purporting to partition the estate of James and Louisa Walea, deceased husband and wife, among their heirs. It is contended that this judgment is void and subject to collateral attack: (a) Because the record in the present case shows conclusively that it was entered by the district court in a guardianship proceeding involving the minor heirs of James and Louisa Walea, deceased, along with other heirs not minors, or parties to the proceeding, over whom the court had no jurisdiction; (b) because the description of the several tracts awarded to the several parties are so indefinite as to be insufficient in law to identify the lands attempted to be partitioned.

We shall discuss the two contentions in the order stated.

In our opinion, the record in this case will not sustain the contentions that the judgment was entered in a guardianship proceeding. It is true that the caption to the decree in question, as shown by a bill of exception, contains the following clause:

"In the District Court of Orange County, Texas, December Term, A. D. 1872, Hon. Wm. Chambers, judge thereof presiding guardianship of the minor heirs of James and Louisa Walea, Dec'd."

As we view this record, the only evidence contained therein which tends in any manner to support the contention that the district court was attempting to make a partition in a guardianship proceeding is the clause above quoted. This clause appears in the caption of the judgment, as shown by one of the bills of exception. We also here pause to remark that it is admitted by both parties that the district court, under the Constitution of 1869 (article 5, § 7), has probate jurisdiction, but of course in a guardianship proceeding it could not exercise jurisdiction over persons not minors, and therefore not parties to the proceeding. Glassgow v. McKinnon, 79 Tex. 116, 14 S. W. 1050.

We think that when we consider the entire record in this case in the light of the rule that all reasonable presumptions should be indulged in favor of the validity of the judgment, it becomes reasonably clear and certain that the above judgment was not entered in a guardianship proceeding. The use of the word guardianship in the caption to the above judgment is an indication, standing alone, that the judgment was entered in a guardianship proceeding, but to rebut this indication is the undisputed fact that there was once pending in the probate court of that county both a guardianship proceeding and an administration proceeding. It is shown that the administration proceeding reached the district court, but there is absolutely no showing that the guardianship ever came into the district court at all. The Court of Civil Appeals finds that the judgment was not entered in a guardianship proceeding, and we think that, taking into consideration the presumption in favor of the validity of a judgment, they were fully justified in this conclusion. We therefore overrule the assignments attacking the judgment on the ground that it was entered in a guardianship proceeding.

In this connection, we also call attention to the fact that the decree as contained in the statement of facts, which was agreed to by all parties, does not contain the above-quoted words, and, in view of the rule that the statement of facts when agreed to takes precedence over the bill, we conclude that there is no evidence in the record to show that the decree was entered in a guardianship proceeding. Texas Jurisprudence Vol. 3, § 564, and authorities there cited.

As to the contention that the partition judgment does not sufficiently describe the several portions or tracts into which it was divided, the record shows that the 480-acre tract therein mentioned was divided in the following manner:

"`1. We give and divide to Elenora Young, wife of Francis Young, 60 acres of land off the B. Garner Survey and the North end of said survey belonging to said estate of 180 acres.

"`2. We give to James Walea, one of said heirs, 60 acres South of and adjoining the land given and divided to Elenora Young.'

"The division so continued through the 480 acres, giving to each of the eight heirs 60 acres."

The division so continued through the 480-acre tract giving to each of the eight children 60 acres of land. Under this decree, the first child could take the first 60 acres on the...