Damron v. Rankin, 738.

• Decision Date: 02 January 1931
• Docket Number: No. 738.,738.
• Citation: 34 S.W.2d 360
• Parties: DAMRON et al. v. RANKIN et al.
• Court: Texas Court of Appeals

34 S.W.2d 360

DAMRON et al. v. RANKIN et al.

No. 738.

Court of Civil Appeals of Texas. Eastland.

January 2, 1931.

Appeal from District Court, Comanche County; Joe H. Eidson, Judge.

Suit by J. T. Damron and wife against G. W. Haggard and others in trespass to try title, and suit by J. T. Damron, as guardian of Quimbey Childers, against G. D. Rankin and others, in county court, to set aside the appointment of respondent as guardian of the person and estate of Quimbey Childers, and for other relief. An appeal from judgment in latter suit was taken to district court, and was there, by agreement of parties, consolidated with suit in trespass to try title. From the judgment, J. T. Damron and others appeal.

Reversed and rendered.

Jerome P. Kearby, of Fort Worth, for appellants.

Bob McCampbell, of Comanche, for appellees.

LESLIE, J.

J. T. Damron and wife, Laura P. Damron, sued G. W. Haggard et al. in trespass to try title in the district court of Comanche county to recover three tracts of land specifically described, one containing 100 acres, a second 73 acres, and a third 80 acres. At the same time the said J. T. Damron, as guardian of Quimbey Childers, filed suit against G. D. Rankin, G. W. Haggard et al., in the county court of Comanche county to set aside as void (1) the appointment of said G. D. Rankin as guardian of the person and estate of Quimbey Childers; (2) the sale by said Rankin as guardian of the first and second tracts of land mentioned; and (3) the court orders authorizing the sale of said lands, and the order of the court confirming the same. This was a direct attack. The suit was tried in the county court, went against the plaintiffs, was appealed to the district court, and there, by agreement of parties, consolidated with the suit in trespass to try title. The trial of the consolidated causes resulted in a judgment in favor of plaintiffs for the 80-acre tract, and in favor of the defendants for the other two. The first part of the judgment is not appealed from by the defendants, but plaintiff appeals from the judgment in the other respects.

J. T. Damron and wife, by right of inheritance, are entitled to recover the lands in controversy, provided the same were not legally disposed of by a duly authorized guardian of Quimbey Childers, deceased, and who was alleged to be a person of unsound mind.

As stated, this is a direct attack on the proceedings of the county court in all the respects above mentioned, and, if those proceedings in appointing G. D. Rankin guardian of the person and estate of Quimbey Childers, and in ordering and confirming the sale by such guardian of the lands of the said Quimbey Childers, are void, then a necessary link in the defendants' chain of title to said lands, and especially the title of G. W. Haggard, fails, and judgment should be for the plaintiffs, unless recovery by them is defeated on some other ground.

The controlling facts are, substantially, as follows: June 4, 1925, said G. D. Rankin and his attorney, accompanied by Quimbey Childers, alleged to be of unsound mind in the application for guardianship, entered the office of the county judge during vacation of his court, presented that official an application by Rankin to be appointed temporary guardian of the person and estate of Quimbey Childers. The application alleged him to be a boy, twenty-two years of age, a resident of the county, possessed of an estate of 253 acres of land in the county, and that it was incumbered by a debt, etc. Without proof or further evidence than the mere appearance of the alleged lunatic and the unverified application, the allegations of the petition seem to have been taken as true, and the judge then and there appointed said Rankin as temporary guardian of the person and estate of Quimbey Childers, on the ground that he was a person of unsound mind. The order of appointment is in due form, and directed the clerk to issue "citation" (notice) as required by law; that is, in compliance with article 4137, R. S. 1925. The order of the judge meets the requirements of article 4135, pertaining to such temporary guardianships, by stating "that unless the same is contested at the next regular term of the court, after notice, the same shall be made permanent." At the next regular term the judge, sitting as a court (notice having been published "once each week for a period of ten days before return day"), made the temporary guardianship of G. D. Rankin permanent, reciting said Quimbey Childers to be a "non compos mentis," and that no one had appeared to contest the appointment. With this appointment as the basis, G. D. Rankin proceeded as such guardian to make application for the sale of the 100-acre and the 73-acre tracts of land in question, obtained orders authorizing the sale thereof, sold and conveyed the land and obtained from the court an order of confirmation of such sale. Said guardian, by authority of such order, sold and conveyed the land to H. O. Rowland, who thereafter by quitclaim deed transferred the same to the F. & M. Bank, and the bank by like deed conveyed the same to G. W. Haggard, and the said Rowland by a quitclaim deed likewise conveyed the land to C. A. Hillman, who also made a warranty deed and transfer of the land to said G. W. Haggard, defendant. The orders, etc., here sought to be set aside will not be specifically referred to hereafter, since, if the order appointing Rankin as guardian is found to be void, his acts under such appointment, including the purported guardian's deed to H. O. Rowland, will necessarily fall under this attack.

It should here be noted that, when the purported temporary guardianship here involved was attempted to be made permanent, there was then no hearing or trial before the court upon any issue of insanity vel non of the alleged lunatic; and, as more particularly pointed out in the latter portion of this opinion, the proceedings had before the county judge, together with his action upon the application for the appointment of a temporary guardian, would, in no respect, constitute a sufficient hearing upon which to predicate the appointment of a subsequent permanent guardian for a person of unsound mind under and by virtue of the requirements of article 4123. Revised Civil Statutes of 1925, or any other statute authorizing the appointment of a guardian for such person. Further, there had been no prior adjudication of any character to the effect that Quimbey Childers was a person of unsound mind. This is material on a phase of the case later to be discussed, and is here referred to more as a circumstance emphasizing the particularity with which this purported guardianship of a person alleged to be of unsound mind was attempted to be taken out under and by virtue of the provisions of our statutes (articles 4134 to 4138, R. S. 1925), relating, as we conclude, to temporary guardians for minors only. In other words, the entire proceeding whereby G. D. Rankin was appointed guardian of the person and estate of Quimbey Childers was had under a statute having application exclusively to the appointment of temporary guardians for minors, and no application whatever to the appointment of guardians for persons of unsound mind. Our statutes just cited do not provide for temporary guardians for such persons.

The statutes providing for the appointment of temporary guardians of the person and estate, or either, of minors, were enacted in 1905. The first article thereof (4134) provides:

"Whenever it appears to the county judge that the interest of any minor and his or her estate, or either, requires immediate appointment of a guardian, he shall, either in term time or in vacation, without citation and with or without written application therefor, appoint some suitable person temporary guardian of the person of such minor and his or her estate or either. * * * The appointment so made may be made permanent."

The article specifically refers to minors, and nothing is said about lunatics and drunkards, for the sufficient reason, we think, that these two classes of persons and their interests in matters of guardianship were by the Legislature deemed amply provided for under chapter 12, title 69, R. S. 1925 (articles 4267-4284), and article 4123 (as it stood prior to its amendment in 1921), and other related articles.

Chapter 12 deals in great particularity with the procedure whereby the guardian of a lunatic or drunkard may be appointed. They are the subject-matter of that specific enactment. This chapter and article 4123 (as it stood before its amendment in 1921) have been embodied in the statutes of this state since 1876. With these statutes in force from so early a date, it seems quite certain that, if the Legislature, in 1905, in enacting the law relating to temporary guardians of minors, had desired or intended to make that act apply to lunatics and drunkards, it could easily have used appropriate language to that effect, or used the terms "lunatic" and "drunkard" co-ordinately with the word "minor" in article 4134, R. S.

In other words, with...