Clarkson v. Ruiz

• Decision Date: 31 March 1937
• Docket Number: No. 9854.,9854.
• Citation: 108 S.W.2d 281
• Parties: CLARKSON et al. v. RUIZ et al.
• Court: Texas Court of Appeals

108 S.W.2d 281

CLARKSON et al. v. RUIZ et al.

No. 9854.

Court of Civil Appeals of Texas. San Antonio.

March 31, 1937.

On Rehearing July 14, 1937.

Rehearing Denied August 11, 1937.

Appeal from District Court, Duval County; L. Broeter, Judge.

Suit by Mrs. J. F. Clarkson and others against Jesus V. Ruiz and others, wherein Mrs. Thelma D. Parr and another filed a cross-action. From the judgment, the plaintiffs appeal.

Affirmed in part, and reversed and remanded in part.

Boone, Henderson, Boone & Davis, of Corpus Christi, and Perkins & Floyd, of Alice, for appellants.

Lloyd & Lloyd, of Alice, and R. E. Seagler, of Houston, for appellees.

MURRAY, Justice.

This suit was instituted in the district court of Duval county, Tex., by appellants, Mrs. J. F. Clarkson, a feme sole, suing herein individually and as independent executrix of the last will and testament of J. F. Clarkson, deceased, Helen Clarkson, a feme sole, Palmer Clarkson, a minor, suing herein by and through his next friend and mother, Mrs. J. F. Clarkson, Olive C. Williams and her husband, J. O. Williams, and Eliza Robles, a minor, suing herein by her guardian and father, Filomeno Robles, as next friend, against Jesus V. Ruiz, individually and as executor of the estate of Cesaria Quintinalla de Ruiz, deceased, Mucio V. Ruiz, Geo. B. Parr and his wife, Thelma D. Parr, Atlee Parr, Humble Oil & Refining Company, Sun Oil Company, R. E. Glover, Philip T. Wright, Walter Goldston, John Turnham, C. H. Karren and wife, Jennie Karren, L. L. Buchannan, J. T. Wright, J. O. Trevino, and Gregoria C. de Trevino, all of whom are appellees herein, seeking to set aside the judgment rendered in the district court of Duval county in cause No. 3516, styled Jesus V. Ruiz et al. v. Mucio V. Ruiz, partitioning Survey No. 553, Certificate No. 1/950, Abstract 152, B. S. & F. original grantee, containing 640 acres, and giving to Geo. B. Parr the west one-half of said survey and to Mrs. J. F. Clarkson and her children, Helen Clarkson, Palmer Clarkson, and Mrs. Olive C. Williams, the east one-half thereof.

The defendants below, appellees here, answered setting up numerous defenses to this cause of action, and Mrs. Thelma D. Parr, joined by her husband, Geo. B. Parr, pleaded a cross-action alleging that she had purchased, at a trustee's sale, the interest of J. F. Clarkson in said Survey No. 553, and that her husband, Geo. B. Parr, had conveyed to her his interest in said Survey No. 553, and that she was therefore the owner of the entire survey.

A trial was had before a jury and resulted in an instructed verdict for numerous defendants. A number of special issues were submitted to the jury, and upon the jury's answers to these special issues judgment was rendered denying Mrs. J. F. Clarkson and the other appellants herein any recovery upon their original cause of action, but allowing Mrs. Thelma D. Parr to recover, upon her cross-action, the title and possession of said Survey No. 553. Hence this appeal.

The record shows that prior to all of this litigation Mrs. Cesaria Quintinalla de Ruiz, a widow, and her two sons, Jesus V. Ruiz and Mucio V. Ruiz, and her granddaughter, Eliza Robles, owned approximately 5,000 acres of land situated in Duval county, including the land here in controversy, known as Survey No. 553.

There was considerable litigation in reference to this land, and Mrs. Ruiz and her children and grandchild were represented by Geo. B. Parr and J. F. Clarkson, who were practicing law in Duval county; Geo. B. Parr being county judge and J. F. Clarkson being county attorney. As a fee for their services, Mrs. Ruiz and her two sons, joined by Filomeno Robles, father and legal guardian of Eliza Robles, conveyed Survey No. 553 to J. F. Clarkson and Geo. B. Parr. There was no order of the probate court authorizing Filomeno Robles to make this conveyance, and therefore same was not binding on his ward, Eliza Robles.

In September, 1932, J. F. Clarkson and Geo. B. Parr filed cause No. 3516, styled Jesus V. Ruiz et al., v. Mucio V. Ruiz seeking a partition of all the Ruiz lands, including Survey No. 553. In this cause Eliza Robles was named as a party plaintiff, suing by and through her grandmother, Cesaria Quintinalla de Ruiz, as next friend. The fact that this minor had a legally appointed guardian in her father, Filomeno Robles, was entirely ignored. J. F. Clarkson died September 24, 1932, and thereafter the litigation was handled by Geo. B. Parr and the law firm of Lloyd & Lloyd, of Alice, Jim Wells county. Mrs. J. F. Clarkson and her children were, by amended pleadings, made parties plaintiff in this cause and ultimately a judgment was obtained, as heretofore stated, partitioning Survey No. 553, and giving to Geo. B. Parr the western one-half thereof, and to Mrs. Clarkson and her children the eastern one-half thereof. Mrs. Clarkson contends that she did not authorize any one to represent her in this suit, and did not authorize any one to make her a party plaintiff in the suit. Geo. B. Parr contends that he had a telephone conversation with Mrs. Clarkson in which she did authorize him to so represent her.

At the time this partition was had, oil had been discovered near the town of Freer, about a mile and a half or two miles west of Survey No. 553. Mrs. Clarkson contends that this partition was inequitable in that it gave to Geo. B. Parr the half of the survey lying nearest to the old field, and that if the survey had been divided by a line running east and west, rather than by a line running north and south, each of the co-owners would have had an equal opportunity to have land lying near the oil field. Oil has since been discovered on the western half of Survey No. 553.

Eliza Robles contends that she owns a two-twelfths interest in Survey No. 553, in view of the fact that her guardian, Filomeno Robles, was not authorized by the probate court of Duval county to convey her interest in this survey to Clarkson and Parr; that her grandmother Mrs. Cesaria Quintinalla de Ruiz was disqualified from representing her in the partition suit, as next friend, because there was a conflict of interests existing between her and her grandmother, and therefore she should have been represented by her father, who had no interest in the Ruiz land and was her legally appointed guardian. Both Mrs. Clarkson and Eliza Robles contend that Geo. B. Parr was not qualified to represent them in the partition suit, because there was a conflict of interests between Geo. B. Parr and his alleged clients.

It is admitted by the appellants that but for the discovery of oil on the western half of Survey No. 553 this suit to set aside the partition decree would not have been instituted. The first question presented is whether or not Eliza Robles owned an interest in Survey No. 553, and was therefore a necessary party to the partition of this survey. We conclude that the record clearly shows that Eliza Robles owned a two-twelfths interest in Survey No. 553, and that the act of her guardian, unauthorized by the probate court, conveying her interest in said survey to Clarkson and Parr, was absolutely void, and her interest in said survey was not affected thereby. There were no pleadings in the partition suit showing her interest in this survey, but, on the contrary, it was alleged to be owned one half by Geo. B. Parr and the other half by the heirs of J. F. Clarkson, deceased.

The fact that Eliza Robles was shown to have owned an interest in other lands, partitioned at the same time by the decree entered in cause No. 3516, was not sufficient to divest her of her interest in Survey No. 553. The further fact that she was represented by her grandmother, as next friend, who had a conflict of interest with her at the time, and by an attorney who was, at the same time, contending that she owned no interest in Survey No. 553, is sufficient to render this partition decree void as to Eliza Robles, the minor, and to show that she was not properly made a party to the partition suit. The partition suit, in so far as it affected Survey No. 553, should have therefore been set aside and held for naught. The fact that Eliza Robles was given a one-sixth interest in the remaining portion of the Ruiz land in no way precludes her from at this time setting up her one-sixth interest in Survey No. 553. Maxwell's Unknown Heirs v. Bolding (Tex. Civ.App.) 11 S.W.(2d) 814; Ward v. Hinkle, 117 Tex. 566, 8 S.W.(2d) 641, 645; Stephens v. Hewett, 22 Tex.Civ.App. 303, 54 S.W. 301, 302; Sandoval v. Rosser (Tex. Civ.App.) 26 S.W. 930; Pearce v. Heyman (Tex.Civ.App.) 158 S.W. 242.

This brings us to a consideration of that part of the judgment which gave to Mrs. Thelma D. Parr the title and possession to the entire Survey No. 553. Mrs. Parr claimed to own the interest of J. F. Clarkson in this survey by reason of having been the purchaser at a foreclosure proceeding by a substitute trustee, under the power of sale in a certain deed of trust alleged to have been given by J. F. Clarkson, during his lifetime, wherein J. R. Salinas was named as trustee and Vicente Salinas was named as beneficiary, and a deed of trust lien created against J. F. Clarkson's interest in Survey No. 553, to secure the payment of a note of the principal sum of $200, signed by J. F. Clarkson and payable to Vicente Salinas. No mention of this note and deed of trust was made in any of the previous suits, nor in the original answers of Geo. B. Parr and Thelma D. Parr, until a second amended answer was filed, two days after this cause was called for trial, at the April term, 1935, of the district court of Duval county, at which time, for the first time, it was alleged that Mrs. Thelma D. Parr in fact owned all of the interest of J. F. Clarkson in Survey No. 553.

Geo. B. Parr testified that he purchased a $200 note secured by the deed of trust alleged to have been signed by J. F. Clarkson; that the note became due and that he called upon J. R. Salinas to sell...