Irwin v. Tollett, 3057

• Decision Date: 22 January 1954
• Docket Number: No. 3057,3057
• Citation: Irwin v. Tollett, 265 S.W.2d 143 (Tex. Ct. App. 1954)
• Parties: IRWIN et al. v. TOLLETT et al.
• Court: Texas Civil Court of Appeals

Page 143

265 S.W.2d 143

IRWIN et al. v. TOLLETT et al.

No. 3057.

Court of Civil Appeals of Texas, Eastland.

Jan. 22, 1954.

F. M. Harrell, Breckenridge, for appellants.

C. Dale Condron, Haskell, for appellees.

GRISSOM, Chief Justice.

J. C. Irwin, Jr. and wife, and others, sued Mattie Tollett, an insane person, John R. Stockton, individually and as guardian of her estate; and Lodella Miller Hanke, individually and as guardian of said estate, in trespass to try title to a 1/9th interest in 162 acres of land in Throckmorton County, subject to an outstanding royalty. In the alternative, plaintiffs alleged that, in 1940, Stockton was duly appointed guardian of said estate and, acting under the orders of the probate court, sold said 1/9th interest to Irwin for $180 cash, reserving in said guardian's deed a nonparticipating royalty 'equal to 1/18 of 1/8th royalty;' that the Irwins paid Stockton, as guardian, said amount, which was the market value of the land, in good faith, without notice of Mrs. Hanke's claim that Stockton's appointment was defective or that the consideration was inadequate and that the Irwins were bona fide purchasers for value, without notice. In the second alternative, plaintiffs sued for partition.

Mrs. Hanke, who was guardian of said estate prior to the appointment of Stockton, filed an answer, as guardian, to the effect that Stockton's sale to the Irwins was void because Stockton was not the guardian of said estate, of which the Irwins had notice; that his appointment was defective; that the consideration was inadequate; that the guardianship records affirmatively disclosed that Stockton was not legally appointed or qualified and that the Irwins had notice thereof. In a trial to the court, judgment was rendered that plaintiffs take nothing as to their suit in trespass to try title but that the land be partitioned. The Irwins have appealed.

It is undisputed that prior to September 23, 1940, Mrs. Hanke was the legally qualified guardian of said estate; that she had applied to the probate court for authority to sell said 1/9th interest; that the sale was ordered; that, in accordance with the order of sale, she sold the same to Irwin and wife for $180 and reported the sale to the court; that, on April 8, 1940, the probate court rendered and entered a judgment in proper form confirming said sale and directing her to make a deed to the Irwins. The record conclusively shows that Stockton, in September, 1940, filed a petition in the probate court alleging the appointment and qualification of Mrs. Hanke as guardian, setting forth her application to sell, the order confirming the sale and directing Mrs. Hanke, as guardian, to execute a deed to the Irwins; that Mrs. Hanke had arbitrarily refused to execute the deed as directed by the court and praying that Mrs. Hanke be removed as guardian and that he be appointed and directed to execute the deed to the Irwins. It is conclusively shown that on September 23, 1940, said probate court entered an order reciting the matters heretofore stated with reference to said sale and that Mrs. Hanke, as guardian, because of disagreement with her relatives, had refused to execute the deed to the Irwins; that Mrs. Hanke was removed as guardian and Stockton appointed and directed to execute the deed to the Irwins; that Stockton, as guardian, did execute said deed in September, 1940, in accordance with the order of said court and that the Irwins paid said consideration and went into possession in 1940.

Appellants' fourth point is that the order confirming the sale reported by Mrs. Hanke, as guardian, vested title in Irwin and wife.

In Rock v. Heald, 27 Tex. 523, 525, our Supreme Court said:

'The confirmation of the sale by the County Court vested the title of the land substantially in the purchasers, subject to the payment of the purchase money secured by the note and mortgage, upon which this suit is founded. The execution of a deed by the administrator is at most but the formal evidence of the title vested in the purchasers by the decree of the court.'

In Finley v. Wakefield, Tex.Civ.App., 184 S.W. 755, 758, Writ Ref., the court said:

'When the sale made by the guardian, Mrs. Brown, to the appellants was confirmed by the decree of the county court of Grayson county, the title of the land vested substantially in appellants, subject, of course, to the payment of the purchase money, and the execution of the deed, on August 25, 1903, by Mrs. Brown as guardian, was at most but the formal evidence of the title vested by such decree of the court. Rock v. Heald, 27 Tex. 523. * * * The confirmation by the county court of the sale made by the guardian to appellants under its order related back to and conveyed title from the date of such sale. Edwards v. Gill, 5 Tex.Civ.App. 203, 23 S.W. 742.'

In Stroud v. Hawkins, 28 Tex.Civ.App. 321, 67 S.W. 534, 536, Writ Ref., the court said:

'This is not an action to set aside the order of the probate court confirming the sale made by the guardian to Hawkins, and the order of confirmation cannot be questioned in this suit, but is entitled to absolute verity. Whatever questions were settled by the order of confirmation cannot be reopened now. Crawford v. McDonald, 88 Tex. 626, 33 S.W. 325. When the report of sale was made, the court had authority to determine whether the guardian was empowered to sell, and whether there was a present necessity for the sale. These questions were concluded by the order approving the report of sale. * * * The order of the probate court confirming the sale is the act which vests title, and the purchaser is protected thereby while the order stands unreversed, if the probate court had jurisdiction to enter it.'

In Edwards v. Gill, 5 Tex.Civ.App. 203, 23 S.W. 742, 743, the court said:

'The rule seems to be that a sale made by an administrator or other functionary by order of and under authority of a court is not complete, and confers no rights until confirmed. But when confirmation is made by the court, though subsequent to the day of sale, it relates back to the date of the sale, if the date of sale is made to appear, and carries title from that date.'

In Butler v. Stephens, 77 Tex. 599, 14 S.W. 202, 203, the court said:

'The case of Brown v. Christie, 27 Tex. (73), 77, to which appellant refers, announces, we believe, the correct rule. Discussing the question of the validity of such sales not made at a time required by law, it is said: 'The title of an estate of a minor is not divested until there is judicial action by the probate court. The sale, if not made at the time required by law, was illegal, and should have been set aside by the probate court. If it be improperly confirmed, its judgment might have been corrected by a direct proceeding for that purpose by any one having an interest in the matter. But it was not open to the collateral inquiry to which it was subjected in this case,' etc. Such we believe to be the rule in the present case. Conceding all that can be fairly claimed under the facts in support of appellant's position, nothing more is established than irregularities occurring in the exercise of an authority and jurisdiction with which the probate court of Hill county was clothed, and these were, if they existed, cured by the final act of confirmation in March, 1883. The confirmation of a sale made by the guardian under the orders of the probate court is conclusive, where the record does not show affirmatively that the jurisdiction did not attach.' See also Erhart v. Bass, 54 Tex. 97, 99; Wilkin v. Simmons, Tex.Civ.App., 151 S.W. 1145, 1149, Writ Ref.; Taffinder v. Merrell, 95 Tex. 95, 65 S.W. 177; 14 Tex.Jur. 246; 21 Tex.Jur. 316; 39 C.J.S., Guardian and Ward, § 133, page 216; McBee v. Johnson, 45 Tex. 634, 643; Sypert v. McCowen's Ex'rs, 28 Tex. 635, 638; Reid v. Allen, 18 Tex. 241, 249.

We have concluded that it is unnecessary to decide whether the order of confirmation, regardless of the validity of Stockton's deed, is sufficient evidence of...