Henderson v. Applegate, 14846.

• Decision Date: 23 May 1947
• Docket Number: No. 14846.,14846.
• Citation: 203 S.W.2d 548
• Parties: HENDERSON v. APPLEGATE et al.
• Court: Texas Court of Appeals

203 S.W.2d 548

HENDERSON v. APPLEGATE et al.

No. 14846.

Court of Civil Appeals of Texas. Fort Worth.

May 23, 1947.

Rehearing Denied June 20, 1947.

Appeal from District Court, Tarrant County; Thomas J. Renfro, Judge.

Petition for a bill of review by Bob Wylie Henderson against Homer E. Applegate and others attacking validity of the appointment of a guardian for Ishie Jewell Henderson, alleged to be of unsound mind, and subsequent orders and decrees in connection therewith, especially the sale of such ward's real estate, which bill of review, on appeal, was consolidated with plaintiff's statutory trespass to try title action involving same real estate and, in such consolidated action, defendant filed exceptions and cross-actions. From a judgment for defendants on their cross-actions, plaintiff appeals.

Affirmed.

Charles T. Rowland, of Fort Worth, for appellant.

H. K. Welch, of Fort Worth, for appellees Homer E. Applegate and Lillian M. Applegate.

Thompson, Walker, Smith & Shannon and John Kerr, all of Fort Worth, for appellees Modina Henderson Clarkson, Mrs. W. I. Cook Trust Estate and Seaboard Surety Co.

SPEER, Justice.

This is an appeal from a judgment rendered by the district court in a consolidated action, one branch of which was a bill of review in the probate court growing out of the appointment of a guardian, the other branch being a trespass to try title suit filed in the district court concerning the same subject matter.

On June 11, 1942, Modina Henderson Clarkson filed an application in the probate court of Tarrant County seeking guardianship of her mother, Ishie Jewell Henderson, alleged to be a person of unsound mind. On June 22, 1942, a judgment was entered reciting service in the manner and for the length of time required by law, and the applicant was appointed guardian of the person and estate of the named ward. Thereafter at various times proceedings were had among which were the sale of a house and lot in Fort Worth, Texas, for the purpose of procuring funds for the maintenance of the ward.

On October 1, 1945, plaintiff Bob Wylie Henderson filed his petition for bill of review in the probate court, attacking the validity of the appointment of the guardian and all subsequent orders and decrees in connection therewith, especially those pertaining to the sale of Lot 8 in Block 24, Oakhurst Addition to the City of Fort Worth, in Tarrant County, Texas. Plaintiff made parties defendant: His sister Modina Henderson Clarkson (the purported guardian); Homer E. Applegate and his wife, purchasers of the real estate; Seaboard Surety Company, surety on the guardian bond; and the Mrs. W. I. Cook Trust Estate, purchaser of a vendor's lien note executed when the land was sold. There is no controversy as to necessary and proper parties.

The bill of review was denied in the probate court and appeal was taken to the district court, on November 17, 1945. On the same date of the appeal, plaintiff filed a suit in district court, in short statutory form of trespass to try title to the above mentioned real estate, naming as defendants Applegate and his wife and the Mrs. W. I. Cook Estate, purchasers of the land and note.

The district court consolidated the appealed bill of review and the trespass to try title cases, and ordered all parties to replead in that court.

Plaintiff's amended petition in response to the order of repleader is necessarily of considerable length. It embraces many grounds upon which he asserts the invalidity of the guardianship proceedings, exhibits of orders entered therein as well also his action in trespass to try title in which he pleads his title because of a previously unrecorded deed from his mother to him conveying the land in controversy and exhibits a copy of the deed. We deem it unnecessary to refer to more than those parts of the amended petition which involve the points at issue.

Briefly summarized, the petition asserts the invalidity of the guardianship proceedings, because: Plaintiff and Modina Henderson Clarkson, to whom we shall refer as guardian, were brother and sister and the only heirs or their descendants of Ishie Jewell Henderson, the ward who died intestate on December 18, 1944. At the date of filing the application for guardianship, Mrs. Ishie Jewell Henderson (whom we shall refer to as the ward) was an adult person. The application for guardianship did not allege that the ward had theretofore been adjudged by a court of competent jurisdiction to be a person of unsound mind, as required by Article 4113, Vernon's Ann.Civ.St. Prior to the filing of the application for guardianship, the ward had not at any time been brought before the court upon a proper written information alleging that she was a person of unsound mind and the issue tried before a jury, as provided by Articles 4269 and 4270, Vernon's Ann.Civ.St. That because of the aforesaid matters the attempted adjudication by the probate court that the ward was of unsound mind, and appointing the guardian were "void, invalid, illegal and constituted a legal fraud." These allegations are contained in paragraphs 8 and 9 of the amended petition. In paragraphs 10 to 19, both inclusive, the validity of each and all of the subsequent orders and decrees of the probate court concerning the application by the guardian to sell real estate and the final order of approval of the reported sale, were alleged to be void upon the same grounds urged as to why the appointment was void.

Paragraphs 20 to 30, both inclusive, of plaintiff's amended petition in the consolidated case are referable to his action in trespass to try title, and his damages as the reasonable rental values of the property alleged to have been unlawfully withheld from his possession.

Unlike his original petition in trespass to try title, plaintiff pled the title under which he claims to be by virtue of a deed of conveyance from his mother (the ward) under date of February 1, 1939, in which instrument grantor reserved the revenue to be derived from the property and the right to manage same until her death. A certified copy of the deed is set out as an exhibit to the pleading which shows it to have been filed for record in the County Clerk's office of Tarrant county on September 24, 1945, and recorded the next day in a given volume and page of the deed records of Tarrant County.

Defendants Applegate and wife answered by special exceptions to paragraphs 8 to 19 both inclusive of plaintiff's amended petition which attacked the validity of the whole probate proceedings; the exceptions specifically pointed out with particularity why those paragraphs of the petition were insufficient to entitle plaintiff to the relief sought by his bill of review. They also specially excepted to paragraphs 20 to 29 of the petition, which paragraphs relate to plaintiff's claim of title under the deed from his mother in 1939, because the pleadings showed the instrument was not of record when the Applegates purchased the property from the guardian, and because there were no allegations that the Applegates had actual or constructive knowledge of such conveyance when they purchased from the guardian. Subject to their exceptions they pled the general denial, and specially that the guardianship proceedings were in every way regular and valid. That they purchased without knowledge of the unrecorded instrument; that plaintiff was estopped to claim thereunder, and that they were bona fide innocent purchasers for value. Based upon their pleadings, they cross-actioned against plaintiff praying that his deed from his mother be canceled, that he take nothing and that they be quieted in their title against his claims.

Other defendants represented by different counsel made similar exceptions to plaintiff's petition. Their general and special answers were very similar to those made by defendants the Applegates except that the W. I. Cook Trust Estate claimed to own the vendor's lien note executed by the Applegates at the time they purchased the property from the guardian. These defendants also averred that the guardianship proceedings and all orders thereunder were valid in every respect. They pled estoppel, and innocent purchaser of the note for value. Their prayer was for cancellation of the purported deed from the ward to plaintiff, a declaration of the validity of the guardianship proceedings, that the vendor's lien note be declared valid and a first lien on the property and for general and special relief in law and equity.

The trial court sustained the special exceptions of defendants. Plaintiff declined to amend and the cause proceeded to trial on the cross-actions of the defendants....