Goolsby v. Bush

• Decision Date: 22 April 1943
• Docket Number: No. 4302.,4302.
• Citation: 172 S.W.2d 758
• Parties: GOOLSBY et al. v. BUSH.
• Court: Texas Court of Appeals

172 S.W.2d 758

GOOLSBY et al. v. BUSH.

No. 4302.

Court of Civil Appeals of Texas. El Paso.

April 22, 1943.

Appeal from District Court, Andrews County; J. A. Drane, Judge.

Action of trespass to try title to realty by W. H. Bush against Fay Goolsby and others. Judgment for plaintiff, and defendants appeal.

Judgment affirmed.

Garland Casebier, of Fort Stockton, Jones & Jones, of Mineola, and R. B. Wherry, of Quitman, for appellants.

Klapproth & Hamilton, of Midland, for appellee.

PRICE, Justice.

This is an appeal from the judgment of the District Court of Andrews County in an action of trespass to try title, the judgment being in favor of the plaintiff. The trial was before the court without a jury. On motion of defendants (appellants here), the court filed findings of fact and conclusions of law. The findings of fact are not attacked by appellants. From these findings the nature and character of the action appear with clarity and brevity.

We here reproduce the findings of fact and conclusions of law filed by the trial court:

"Findings of Fact

"The facts in this case are uncontradicted. Both plaintiff and defendants are claiming the title to the following described land: Section Three (3), Block A-47 Public School Land, Andrews County, Texas, under D. A. Goolsby

"D. A. Goolsby died February 22, 1923, leaving a will wherein Fay Goolsby, Herbert Goolsby and Mrs. Lena Winsett are the devisees to share equally in the property of D. A. Goolsby. The above described land was owned by D. A. Goolsby at the time of his death, subject to a certain deed of trust. J. H. Goolsby, one of the devisees, made application with will annexed to the Probate Court of Hunt County, Texas to probate the will and to be appointed executor of the will. Citation was issued and published in a newspaper in Hunt County, Texas, once each week for thirty (30) days prior to the return date, being the first Monday in May, 1923. The Probate Court of Hunt County, Texas, by its order admitted the will to probate and appointed J. H. Goolsby as executor of the Estate of D. A. Goolsby, deceased. The Probate Court of Hunt County, Texas, in its order admitting the will to probate, found and recited that citation had been issued and service had, as required by law.

"On the 28th day of May, 1923, J. H. Goolsby filed an instrument designated as `a waiver to be appointed executor of said estate,' stating he was unable to qualify and serve in that capacity and requested the Court to appoint J. W. Bowman administrator of the Estate of D. A. Goolsby, deceased, in his place. Whereupon, the Probate Court, on the 29th day of May, 1923, entered an order without further notice, appointing J. W. Bowman as executor under the will of D. A. Goolsby. J. W. Bowman, as executor of said estate, sold Section 3, Block A-47, Public School Land, Andrews County, Texas, under orders of the Probate Court of Hunt County, Texas. The said J. W. Bowman, executor, made application to sell the land for cash or credit to pay debts of the Estate of D. A. Goolsby but sold the land to satisfy a deed of trust lien, and which deed of trust lien indebtedness had been prior thereto approved by the Probate Court of Hunt County, Texas. I find that proper notice had been given, as required by law, for the sale of said land, and I further find that the Probate Court entered its order confirming said sale. Said sale was made to S. B. Brooks in satisfaction of his indebtedness, and which debt was secured by the deed of trust lien aforementioned. In obedience to the order of the Probate Court, deed was duly executed by J. W. Bowman, executor, conveying said section to S. B. Brooks. By mesne conveyances, title has been conveyed from S. B. Brooks to plaintiff, W. H. Bush.

"I further find that the defendants, Fay Goolsby, C. P. McKnight, Frank C. Biggs, Alice Pemberton, Leona Sherrill, Mildred Butler and her husband, W. J. Butler, Laura Delaney and her husband, Lloyd Delaney, Robert L. Pemberton and J. H. Goolsby are all of the devisees and heirs of the devisees and assignees of the devisees under the will of D. A. Goolsby.

"I further find that S. B. Brooks and those claiming under him, including the plaintiff, W. H. Bush, have paid all of the taxes due on said land and all of State interest due the State of Texas since 1924 and that there is no delinquent interest and that there are no delinquent taxes due the State of Texas against said land.

"I further find that the land involved was described in the Inventory and Appraisement only as `Equity in a Section of Land in Andrews County, Texas'; that in the order made by the Probate Court of Hunt County approving the claim of S. B. Brooks, and in the order by said Court to sell said land, the notice of approval of sale and in the judgment of said court approving and confirming said sale, said section of land is described as `Section 3-A47,' in Andrews County, Texas, the word `block' being omitted.

"Conclusions of Law

"I conclude as a matter of law, that this suit is a collateral attack upon the probate proceedings and judgment of the Probate Court of Hunt County, Texas. The Probate Court of Hunt County, Texas had jurisdiction to administer the Estate of D. A. Goolsby, deceased. The order of the Probate Court of Hunt County, Texas appointing J. W. Bowman executor of the Estate of D. A. Goolsby, deceased, was valid, and the said J. W. Bowman could be appointed without further notice. The sale by J. W. Bowman, under order of the Probate Court of Hunt County, Texas, of the land above described to S. B. Brooks, was valid. The proceedings in the Probate Court of Hunt County, Texas sufficiently describe Section 3, Block A-47, Public School Land, Andrews County, Texas to identify said section as owned by D. A. Goolsby at the time of his death. Defendants can not attack collaterally the orders and proceedings of the Probate Court of Hunt County, Texas in this suit. Therefore, title to the land in question is good in W. H. Bush as against the claim of the defendants."

To these findings we add one additional fact which is undisputed and is deemed relevant; that is, the appointment of Bowman as administrator with will annexed occurred during the same term at which Goolsby had been theretofore so appointed.

Summarized, the points relied upon for reversal are as follows:

(1) Because the County Court did not have jurisdiction over the estate of D. A. Goolsby, deceased, and did not have jurisdiction to appoint J. W. Bowman administrator.

(2) Because the sale by the administrator was not in accordance with the order authorizing it.

(3) That the land purported to be conveyed by the administrator's deed was not sufficiently described in the probate proceedings to identify the land as being Section 3, Block A-47, Public School Land, Andrews County, Texas, the land involved here.

It is conceded by appellants the attack made on the proceedings in the County Court of Hunt County is collateral. From this concession the burden is assumed of showing such proceedings are void, rather than voidable. Further, appellants are restricted to the record of that court for proof thereof. In the absence of affirmative showing by the record of lack of power to act in the premises, power to act and proper action is conclusively presumed in an attack such as we have here. Poor v. Boyce, 12 Tex. 440; Murchison v. White, 54 Tex. 78; Crawford v. McDonald, 88 Tex. 626; Dallas Joint Stock Land Bank v. Forsyth, 130 Tex. 563, 109 S.W.2d 1046.

By Article 5 of Sec. 16 of our Constitution, Vernon's Ann.St. the county court is given general jurisdiction as to probate matters. Its judgments and decrees evidencing its exercise of the jurisdiction conferred are entitled to the same presumption as to verity as that of the district court.

The application for the probate of the will made by J. H. Goolsby, one of the beneficiaries under the will, and for the appointment of an administrator, was sufficient to invoke the jurisdiction of the County Court of Hunt County. 13 Tex. Jur. p. 603, and authorities there cited.

The judgment rendered probating the will and appointing Goolsby administrator evidenced the exercise of active jurisdiction. The judgment recites that "citation has been duly made as required by law." This recital, in our opinion, is conclusive, unless it is shown by the record that same could not possibly be true. Murchison v. White, 54 Tex. 78.

It was shown that the notice described in the trial court's findings was issued and that same was published in a newspaper. Art. 3257, Vernon's Sayles' Statutes, 1914, Vernon's Ann.Civ.St. art. 3334, governed the service of citation on this application. This, in substance, required the posting of the notice rather than its publication. But it does not conclusively appear that this was the only notice issued and served. In the absence of such showing it is our opinion that the recital concludes the matter.

It is contended that the record conclusively shows that citation did not issue on the appointment of Bowman as administrator in place of Goolsby. This is true. The order of May 28, 1923, revoked the order of May 8, 1923, appointing Goolsby,...