Cline v. Niblo

CourtSupreme Court of Texas
Citation8 S.W.2d 633
Docket Number(No. 4702.)<SMALL><SUP>*</SUP></SMALL>
PartiesCLINE v. NIBLO et al.
Decision Date25 June 1928

Burgess, Owsley, Storey & Stewart, of Dallas, for plaintiff in error.

W. L. Curtis and Lyle Saxon, both of Dallas, for defendants in error.


This case was originally heard by and judgment entered on an opinion and recommendation of the Commission of Appeals. However, because of its importance, and because the decree previously entered must be modified, we have concluded to write this opinion on the motion for rehearing.

The facts of this case are well stated by the Court of Civil Appeals in its opinion reported in 286 S. W. 298, and a complete statement here is deemed unnecessary.

Mrs. Anna Niblo, a widow, resident of Dallas county, died intestate in December, 1920, leaving as her heirs nine children, namely, Victor, Russell, Oscar, Grady, Urban, Stella Francisco (a married daughter), Miss Ethel, an unmarried daughter, Bara, a daughter, and Elmo, a son. All were adults except the last two named, who were minors.

At the time of her death Mrs. Niblo owned in her own right three lots in the city of Dallas; lots 1 and 2 being her homestead, on which she had resided since 1903, and on which she resided at the time of her death with three of the children named above, Miss Ethel, an adult unmarried daughter, and the two minors, Bara and Elmo. In 1916 she abandoned the use of lot 3 as a part of the homestead, and a two-story residence was erected thereon, for rental purposes, on which, at the time of her death, there existed a lien indebtedness of approximately $4,000. Her entire estate consisted of the above-named real estate, household goods, and furniture.

The Court of Civil Appeals found that lots 1 and 2, the homestead property, were free from liens or incumbrances at the time of Mrs. Niblo's death, and that aside from the amount due on lot 3 as above shown, the debts of the estate were general ones, for the payment of which the homestead could not be administered. Under the facts stated and as found by the Court of Civil Appeals, the rights of the heirs under the Constitution and laws of this state, upon the death of Mrs. Niblo, were as follows: The nine children inherited the whole of the property, share and share alike, subject only to the payment of the lien indebtedness against lot 3. R. S. art. 3499; Const. art. 16, § 50; Zwernemann v. Von Rosenberg, 76 Tex. 522, 13 S. W. 485; Lacy v. Lockett, 82 Tex. 190, 17 S. W. 916; Cameron v. Morris, 83 Tex. 14, 18 S. W. 422; Hoefling v. Hoefling, 106 Tex. 350, 167 S. W. 210; American Bonding Co. v. Logan, 106 Tex. 306, 166 S. W. 1132, Wade v. Scott (Tex. Civ. App.) 145 S. W. 675. Miss Ethel, the adult unmarried daughter, had the right to occupy the homestead so long as she elected to do so. R. S. arts. 3485, 3488; Quintana v. Giraud (Tex. Civ. App.) 209 S. W. 770; Lacy v. Lockett, 82 Tex. 192, 17 S. W. 916; Krueger v. Wolf, 12 Tex. Civ. App. 167, 33 S. W. 663; Zwernemann v. Von Rosenberg, supra. Bara and Elmo, the minors, had the right to occupy the homestead jointly with their unmarried sister "so long as a guardian of the minor children * * * may be permitted, under the order of the proper court having the jurisdiction, to use and occupy the same." Const. art. 16, § 52; R. S. arts. 3485, 3488. However, in this instance the minors had no guardian and were therefore unable to assert their right to the occupancy of the homestead. Hall v. Fields, 81 Tex. 553, 17 S. W. 82; Hensel v. Int. B. & L. Ass'n, 85 Tex. 215, 20 S. W. 116; Osborn v. Osborn, 76 Tex. 494, 13 S. W. 538; Cox v. Oliver, 43 Tex. Civ. App. 110, 95 S. W. 596. The homestead was not subject to partition or division among the other heirs so long as these rights of occupancy by the unmarried daughter and the minor children were asserted. Const. art. 16, § 52; R. S. arts. 3485, 3488, 3496, 3497; Foreman v. Meroney, 62 Tex. 723; Allen v. Allen (Tex. Civ. App.) 158 S. W. 1049; authorities supra.

No application was made to the probate court to set aside the homestead to those authorized to occupy the same. This, however, did not affect the rights of the heirs as stated above. Connell v. Chandler, 11 Tex. 249; American Bonding Co. v. Logan, 106 Tex. 306, 166 S. W. 1132.

At the time this suit was brought, the plaintiff in error, Cline, under claim of title through administration proceedings, was in possession of all three of the lots named, including lots 1 and 2, which were the homestead, to the exclusion of the heirs, including the minors.

In September 1923, Victor Niblo, Russell Niblo, Stella Francisco, the married daughter of the deceased, joined by her husband, and Bara Niblo and Elmo Niblo, minors through their next friend, Oscar Niblo, brought this suit in the district court of Dallas county against plaintiff in error, in the form of trespass to try title to all three of the lots previously described. Plaintiff in error answered by a plea of not guilty and a special plea setting up his title through the administration, alleging the facts, and also basing thereon a plea of estoppel. In addition to this, he filed a cross-action in the form of trespass to try title against the plaintiffs in that suit, and against all the other heirs of Anna Niblo, to recover the said three lots in controversy. The trial court held as a matter of law that the deed of conveyance to plaintiff in error by the administratrix conveyed title to him of lot 3, and that as a matter of law Ethel Niblo, Grady Niblo, and Russell Niblo were estopped by their acts and by the administratrix's deed to claim title to their inheritance, and that their three-ninths interest had passed to the plaintiff in error, but that as a matter of law the deed of the administratrix did not divest Bara Niblo, Victor Niblo, Elmo Niblo, and Urban Niblo of title to their interests in lots 1 and 2, and that under the findings of the jury Stella Francisco and Oscar Niblo were not estopped to claim their interests in lots 1 and 2. The trial court also found that plaintiff in error had placed his improvements on lot 2 in good faith, and gave him judgment for these improvements. Ethel, Grady, and Russel Niblo did not appeal from the judgment of the lower court, and the question as to whether or not the estoppel was lawfully adjudged against them was not before the Court of Civil Appeals, and is not before this court.

Miss Ethel Niblo, the unmarried daughter, was appointed administratrix of her mother's estate, and qualified as such. The application for letters of administration and the inventory returned did not disclose, nor did the application for the sale of the real estate allege or show, any lien or constitutional debts against the homestead property, or disclose that any of the property was of a homestead character. The application for sale did allege in general terms that the estate owed taxes in an amount unknown; but neither the application nor the evidence here allocated any part of this unknown amount of taxes to the homestead property. The application for sale did show that the real estate consisted of "residences," the only real estate owned by Mrs. Niblo, and that she left household goods and furniture and minor heirs. There is nothing in the record to show that the questions of whether or not lots 1 and 2 were homestead property, or whether or not the claims against the estate were legal charges against the homestead or of the rights of the minor heirs and unmarried daughter to occupy the homestead property on lots 1 and 2 were ever before the probate court or adjudicated in any way. Upon hearing of the application to sell the property, the court directed the sale of the lots, and plaintiff in error, Cline, became the purchaser. When plaintiff in error went into possession of the property, he wrecked the homestead house which stood on lots 1 and 2, and erected on lot 2 a duplex cottage, using some of the material in the old house in this construction.

The Court of Civil Appeals found that the homestead property was ordered sold by the probate court for the purpose of paying general creditors of the estate, and the controlling question is whether or not in this, a collateral proceeding, the decree of the probate court ordering and approving the sale of the homestead property may be attacked. We think the authorities are conclusive that it can be attacked because void for lack of jurisdiction over the subject-matter, although its void character may not appear on the face of the record. 13 R. C. L. p. 675, § 134; 29 Corpus Juris, p. 979, § 441, page 1028, § 526, page 967, § 415; Yarboro v. Brewster, 38 Tex. 398; Griffin v. Harris, 39 Tex. Civ. App. 586, 88 S. W. 493; Allen v. Ramey (Tex. Civ. App.) 226 S. W. 489; Hall v. Fields, 81 Tex. 553, 17 S. W. 82; Hamblin v. Warnecke, 31 Tex. 91; Kimmons v. Abraham (Tex. Civ. App.) 176 S. W. 671; Dignowity v. Baumblatt, 38 Tex. Civ. App. 363, 85 S. W. 834; Robinson v. Seales (Tex. Civ. App.) 242 S. W. 754; Stephenson v. Marsalis, 11 Tex. Civ. App. 162, 33 S. W. 383; Miller v. Davis, 69 Ark. 1, 64 S. W. 97, 68 S. W. 23, 86 Am. St. Rep. 167; Anthony v. Rice, 110 Mo. 223, 19 S. W. 423; McCloy v. Arnett, 47 Ark. 445, 2 S. W. 71; Showers v. Robinson, 43 Mich. 502, 5 N. W. 988; Tindall v. Peterson, 71 Neb. 160, 98 N. W. 688, 99 N. W. 659, 8 Ann. Cas. 721; Smith v. Wildman, 178 Pa. 245, 35 A. 1047, 36 L. R. A. 834, 56 Am. St. Rep. 760.

The rule is stated in Ruling Case Law, supra, as follows:

"Ordinarily an order of the probate court directing the sale of the homestead of a decedent is void if made during the minority of his children or while his widow is unmarried and has not abandoned the homestead nor acquired any other in her own right."

Corpus Juris...

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