Byrne v. Love

• Decision Date: 01 January 1855
• Citation: 14 Tex. 81
• Parties: E. F. BYRNE v. JAMES LOVE AND OTHERS.
• Court: Texas Supreme Court

14 Tex. 81

E. F. BYRNE

v.JAMES LOVE AND OTHERS.

Supreme Court of Texas.

1855.

See this case for a discussion of guardianship by nature under the statutes of this State.

The power of the father as guardian by nature, under our statute, over the person and estate of his minor child is not assignable by deed without confirmation by the County Court.

It seems that after ?? egitimate child attains the age of seven years the father has an equal claim with the mother to the guardianship; and where the property of the child is derived from the father, that would turn the scale in his favor, unless counterbalanced by objections of sufficient weight to the contrary. (Note 19.)

Appeal from Galveston. This suit was brought in the name of Edward F. Byrne, an infant of ten years of age, by his mother, calling herself his natural guardian and next friend, to recover from the defendants possession of a lot of ground in the city of Galveston and damages for its occupancy.

The petition alleged that said Edward was the son of Wm. C. and Ann C. Byrne; that Wm. C. Byrne, in the year 1838, was lawfully married to one Jane Heatherington, who was still living and from whom he had never been divorced; that in 1839 he married said Ann, who was wholly ignorant of the first marriage. It alleged title to the premises in Edward by virtue of a deed from the defendant Love, which was annexed to the petition; but that defendants claimed possession of the premises under some pretended color of of title from the said Wm. C. Byrne, and that the defendant Love claimed the right to receive the rents and profits; denied such right or any control over the property by W. C. B. or Love; charged that W. C. B. had abandoned Edward and gone to foreign parts, and that he and Love were insolvent; prayed an injunction restraining any payment of rent to Byrne or Love; alleged the annual rent to be worth $450, and that defendants had occupied it since February, 1848; prayed to recover the property and damages, and for general relief.

The judge granted the injunction.

The defendants answered under oath.

1st. A plea denying that Ann C. Byrne was the natural guardian, and alleging that Wm. C. Byrne was lawful father and natural guardian of Edward, and praying that suit should abate as not properly brought.

2d. A demurrer.

3d. The answer admitted the title of Edward to the property; admitted he was the son of Wm. C. and Ann C. Byrne, and admitted their marriage; alleged their ignorance of any marriage with Jane Heatherington, and required strict proof of it and prayed to be allowed to disprove it; admitted Wm. C. Byrne's residence beyond the limits of the State, but denied his insolvency and denied that he had made no provision for Edward or had no means to support him or had abandoned him. They allege that prior to January, 1850, Wm. C. Byrne, being in possession of and exercising control over the property, as well as of his son Edward, the defendant Smith rented the property from him for three years from 1st of January, 1850, at $300 a year, (its full yearly value,) $50 a year to be expended in repairs and improvements on the property, and the remaining $250 to be paid over to the defendant Love for the use and benefit of Edward, according to an arrangement between said Byrne and Love. They admit Smith's possession of the property since that time, and allege that he has placed $150 in improvements on the property and paid said Love the remainder. They allege that the property sued for was purchased by said Wm. C. Byrne of said Love with the funds of said Byrne, and that in order to make a provision for Edward against the accidents of mercantile business he caused said Love to convey the property to said Edward; that the property was thus a gift from Wm. C. B. to his son Edward, and that he was the lawful father of Edward. They further allege a divorce for adultery and other causes on the part of Ann C. Byrne between her and her husband, Wm. C. Byrne, and plead the decree. They further allege that in the latter part of 1849 said Wm. C. B. determined to remove to California to better his fortunes; that he then had sole charge and control of Edward and his property as natural guardian, and was in receipt of its rents and profits, and without any dispute or contest as to the guardianship of Edward; that in order to provide for the education and rearing of Edward, which he believed could be better done in this country than in California, he requested said Love to take charge of Edward, make him a member of his family, provide for and educate him till he became twenty-one years of age, take possession of said property belonging to Edward, and receive its rents and profits in order to provide the means therefor, and deliver the property up to said Edward when he became twenty-one years of age; that said Love consented to this after the repeated solicitations of said Wm. C. B., believing the interests of Edward would be thereby promoted. Reference is then made to an article of agreement to provide for the above objects, executed between said Wm. C. B. and Love January 1, 1850, which is made part of the answer, and they allege that thereby Love became entitled to the possession and control of said Edward and bound to provide for his education and maintenance, and also entitled to the possession, rents, and profits of said property, subject to the agreement of rent to said Smith; that its yearly value is about $300, not more than enough to provide for and educate him in the manner desired by his father and intended by said Love; that said Love had received the charge of Edward, made him a member of his family, placed him at a suitable school, and in all respects provided for him in the same manner as the son of said Love, a few years older, and that he had in all things performed the obligations of said agreement; but that not long after the said Ann C. Byrne had unlawfully and fraudulently obtained possession of said Edward and clandestinely conveyed him away from Galveston, and has ever since secretly and forcibly detained him and refused to return him; that said Love has made every exertion in his power to recover him, but has been prevented by the acts of said Ann; that he fully intends to recover him, and in all things to perform the covenants of his agreement. Love prays that Ann C. Byrne be made a party, and that on the hearing she be decreed to return the said Edward to him in Galveston by a day to be fixed by the court, or in default that she be attached for a contempt and compelled by fine and imprisonment to obey its decree. Love further charges that the character of said Ann for want of chastity and virtue is such that she should not be permitted under any circumstances to have charge either of his person or his property, and prays that in the event said Edward be entitled to any judgment in this suit the same be secured from going into her hands or subject to her control. The defendants specially deny that they had any notice that Wm. C. Byrne was not the natural guardian and authorized to control the property of which he held possession.

The plaintiff demurred to the plea in abatement, but the demurrer was overruled by the court, but on the hearing of the plea defendants were ordered to answer further. The matters of law and fact were all submitted to the court, waiving a jury, and the court dissolved the injunction and dismissed the petition; and because it appeared that William C. Byrne, the lawful father and natural guardian of Edward, had placed the said Edward and the property in controversy in the possession and control of said Love, and the said property was derived by said Edward from his father, it was decreed that said Love's right to the possession and control of said Edward and the property be confirmed, and that said Love should within ten days file with the clerk of the court a bond with approved security, in the sum of $6,000, to the chief justice of Galveston county and his successors in office, conditioned for the performance of his obligations in the agreement between said William C. B. and himself, and that said Love should not receive the rents and profits or in any manner interfere with said property until said bond was executed, and that said Love should report whenever required by the chief justice, in accordance with the provisions of the law respecting guardians, and that said Ann C. Byrne should restore said Edward to said Love within two months after the rendition of the decree and execution of the bond, on pain of being proceeded against for contempt.

The deed from Byrne to Love stipulated that whereas it was estimated that the rents of the property would not exceed the necessary expenses of the child's maintenance and education, the said Love should not be required to account either to the said Wm. C. or to the said Edward.

P. McGreal and W. G. Hale, for appellant. The deed of bargain and sale of the property of the infant plaintiff, made by his father to Love, until the plaintiff arrives at twenty-one years, is void. (2 Wilson R., 129, 135; 1 Nott & McCord, 369; Hardwick's R., 183; 9 Yerger's R., 463.)

The statute gives the custody of the minor children, their education and estates, to the lawful father while living; but this is a personal trust which the father cannot sell, transfer, or assign.

W. P. Ballinger, for appellees. Byrne being the lawful father and natural guardian of Edward, and having given him the premises, I maintain that he was lawfully entitled to their custody, control, and administration during Edward's minority, and could lawfully “place them in the possession and control” of Love.

Authorities have been cited to prove that the father as natural guardian possessed no such authority by the common law, but his authority was confined solely to the person of his child. These authorities are inapplicable. The right of the father is not claimed by the common law, but by the statute. The...