Carroll v. McLeod

• Decision Date: 28 June 1939
• Docket Number: No. 2237-7340.,2237-7340.
• Citation: 130 S.W.2d 277
• Parties: CARROLL et al. v. McLEOD et al.
• Court: Texas Supreme Court

Page 277

130 S.W.2d 277

CARROLL et al. v. McLEOD et al.

No. 2237-7340.

Commission of Appeals of Texas, Section A.

June 28, 1939.

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

Suit in trespass to try title by Velma Carroll and others against J. B. McLeod and others. A judgment for plaintiffs was reversed by the Court of Civil Appeals, 109 S.W.2d 316, which rendered judgment that plaintiffs take nothing and the plaintiffs bring error.

Affirmed.

Newland & Cornett, of Linden, and Fulbright, Crooker & Freeman, of Houston, C. A. Leddy and John H. Crooker, Jr., both of Houston, for plaintiffs in error.

Walace Hawkins, of Dallas, and Carney & Carney, of Atlanta, for defendant in error McLeod.

Vinson, Elkins, Weems & Francis and Thomas Fletcher, all of Houston, for defendant in error United Production Corporation.

GERMAN, Commissioner.

This case involves the question of the validity of a guardian's deed.

On November 7, 1922, J. D. Wall made application to the Judge of the County Court of Cass County, Texas, to be appointed temporary guardian of the estates of his four minor children, all of whom were under fourteen years of age. The application was filed on that date by the County Clerk. Obviously, the County Judge must have acted on the application on that day, or one or two days later, because on the 11th day of November, 1922, J. D. Wall and certain sureties executed bond in the sum of $500, which recited that J. D. Wall had theretofore been appointed temporary guardian of said four minor children. Also, on said 11th day of November 1922, J. D. Wall took the oath required by law as temporary guardian. On the same day certain parties returned an inventory and appraisement of the estates of the said minors, reciting that the same had been produced before them by J. D. Wall, temporary guardian. The Judge's docket showed an order appointing J. D. Wall as temporary guardian, but the date of its entry was not shown. On November 20, 1922, formal order of appointment was entered by the probate court "In Regular Session, November Term, 1922." After reciting that it appeared to the court that the interest of the minors and their estates required immediate appointment of a guardian, it is further recited as follows: "It is therefore ordered by the Court that the said J. D. Wall be and is hereby appointed temporary guardian of the person and estate of said minors, Velma Wall, et als, Minors, without citation, and that due notice of said application be given, and that letters of Temporary Guardianship issue to said J. D. Wall on his giving bond in the sum of Five Hundred Dollars, payable and conditioned as required by law, and taking the oath within twenty days; and it is further ordered that such appointment of guardianship, unless contested at the next regular term of this court, after service of citation, shall be made permanent."

While it may not be important, yet we express it as our opinion that the formal order must have undoubtedly been prepared and handed to the Judge on the date of the filing of the application, and the appointment made by notation upon the Judge's docket; although the order was not formally entered until November 20, 1922. The fact that the temporary guardian executed bond and took oath of office, and the appraisers named in the formal order returned inventory and appraisement, all on the 11th day of November, 1922, obviously shows that the appointment by the Judge took place on or prior to November 11, 1922, and the date set out in the order entered represented the date of formal entry on the minutes of the Court. This, we think, clearly shows an appointment by the Judge in vacation of J. D. Wall as temporary guardian, and ratification of that appointment by the court in regular session. We are therefore of the opinion that the appointment of J. D. Wall as temporary guardian was unquestionably valid, and that he qualified as such. This in fact does not appear to be questioned.

All papers in this proceeding have been lost for a number of years. The probate minutes of Cass County are entirely silent as to proceedings in this guardianship from November 20, 1922, until January 14, 1924, in the sense that there are no entries of any kind on the minutes of the court during that period. On said last named date, J. D. Wall, "Guardian of the Estate" of the four minors, made application to the County Court of Cass County for an order of sale, authorizing him to sell an undivided one half interest in 82 acres of land in Cass County. Notice of this application was duly given. On January 21, 1924, the County Judge entered order authorizing sale of said land. J. D. Wall, as guardian, made report of sale, and on February 15, 1924, the probate court entered order approving said sale. On the 25th day of February, 1924, J. D. Wall, as guardian, executed and delivered to J. D. McLeod deed to the interest of said minors in said 82 acres of land, the recited consideration being $750. It seems to be conceded that all of the proceedings, beginning with the application for sale, and terminating in guardian's deed, were regular and are not subject to collateral attack, unless for the reason hereinafter set out. At least no assignments are presented in application for writ of error questioning the regularity of said proceedings and the guardian's deed.

The present suit was instituted in the District Court of Cass County by Mrs. Velma Carroll and husband, Mrs. Lois Kendrick and husband, Mrs. Edith Ballard and husband, and James Wall; the said Mrs. Carroll, Mrs. Kendrick, Mrs. Ballard and James Wall having formerly been the wards of J. D. Wall in the guardianship proceeding mentioned above. They will be designated plaintiffs. The suit was against J. D. McLeod and others holding under the guardian's deed executed February 25, 1924. They will be designated defendants.

Plaintiffs' petition was in form of trespass to try title, but contained elaborate allegations attacking the proceedings of the probate court leading up to said guardian's deed, and also said deed, as being void. The purpose of the suit was to recover the undivided one half interest in the 82 acres of land, more or less, conveyed by said deed. Trial in the district court resulted in an instructed verdict in favor of plaintiffs. In the judgment it is recited that the court was of the opinion that the purported deed of February 25, 1924, was wholly void, and all the purported orders of the probate court were void, because at the time of the entry of the order of sale and the entry of the order of confirmation of said sale, J. D. Wall was not the duly appointed guardian of the estates of said minors. The Court of Civil Appeals held that the guardian's deed was valid, and reversed and rendered judgment that plaintiffs take nothing. 109 S.W.2d 316.

Although it is apparently admitted that J. D. Wall was duly appointed temporary guardian of the estates of said minors, yet it is the contention of plaintiffs that he did not become, and could not become, permanent guardian, either by virtue of the statute, or by order of the court, until after notice as provided for by Article 4137 of the Revised Statutes of 1925; and that the record affirmatively discloses that such notice was not given. They in effect admit that if the record is merely silent as to the giving of notice (and if this be a collateral attack), then it will be conclusively presumed that notice sufficient to constitute Wall permanent guardian was given, and the court had jurisdiction to authorize the sale by said guardian. Their contention has been reduced to the last analysis in the following statement in application for writ of error: "It, therefore, becomes vital to ascertain whether in truth and in fact the record is merely silent on this point, or whether it affirmatively shows that there was no citation or notice in the guardianship proceeding. Plaintiffs in error take the position that, by reason of the combined effect of three factors, the record affirmatively shows that there was no notice or citation in this case; these three factors are: (1) Article 4106 of the Revised Civil Statutes of 1925, specifically requires the county clerk to record in the probate minutes all such notices, citations and the returns thereon. This record is therefore a part of the judgment roll, which, under all the authorities, may be looked to on a collateral attack of a judgment for want of due service where there is no express or presumed finding by the trial court. (2) It is a well-settled legal principle that all public officers are presumed to have carried out their official duties, in an absence of a showing to the contrary. (3) The deputy county clerk and the county judge during the time in question testified in this case that they had examined the probate minutes during the period from the appointment of J. D. Wall as temporary guardian down through the time that the court confirmed the order of sale of the property in question, and they found that there was no record of the issuance or service of any citation or notice in this case. Since the clerk is presumed under the law to have recorded any citation or notice with the return thereon in the probate minutes the failure of...