Kendrick v. Wheeler

• Decision Date: 14 June 1892
• Citation: 20 S.W. 44
• Parties: KENDRICK <I>et al.</I> v. WHEELER <I>et al.</I>
• Court: Texas Supreme Court

20 S.W. 44

KENDRICK et al. v. WHEELER et al.

Supreme Court of Texas.

June 14, 1892.

Commissioners' decision. Section B. Appeal from district court, Collin county; H. O. HEAD, Judge.

Bill by Jessie Kendrick and another against Walter Wheeler and another to review and set aside a certain order of the probate court of Collin county. From a judgment for defendants, plaintiffs appeal. Affirmed.

Craig & Wolfe, for appellants. R. T. Shelton, Muse & Mangum, and M. H. Garnett, for appellees.

FISHER, J.

May 20, 1889, appellants instituted this suit in the county court by bill of review against appellees, seeking to set aside and review certain orders of the probate court, made at its May term, 1881. The petition, in substance, alleges that appellants, Jessie Kendrick and Effie Burnett, are the children of appellee Walter Wheeler and his deceased wife, A. C. Wheeler; that at the death of their mother there were two certain tracts of land that belonged to the community estate of their mother and father; that appellee Wheeler was on the 17th day of January, 1881, by the county court of Collin county, appointed guardian of their estates; that he qualified as such February 2, 1881; that on April 27, 1881, he filed an exhibit, showing the condition of the estate, and asked for an order to sell the real and personal property belonging to their estates; that on the 16th day of May, 1881, the court entered an order granting the application to sell; that on the 16th day of May, 1881, appellee Wheeler filed his report of the sale of the tract of 160 acres in the B. F. Mathews survey to appellee J. H. Bowman for $1,905 cash, which sale was approved by the court on May 23, 1881, ordering Wheeler to make and execute deed thereto, which he did on the same day; that said Wheeler, guardian, has never made any final report, and that said guardianship is still unsettled. They further say that this order of sale and sale are void, and ask that the same be set aside for the reasons: (1) That the order of sale was made without any valid notice having been issued; (2) because the notice was not served in the manner, or for the length of time, prescribed by law; (3) because the order of sale contained no description of the property directed to be sold; (4) because the order did not state the necessity or purpose of such sale; (5) because the application to sell showed no valid reason or necessity for such sale; (6) because said order was wholly unauthorized by law. It is also alleged that there was no legal cause existing for said sale, and that the absence of such necessity was apparent of record, and that appellee Bowman had actual and constructive notice thereof; that said order of sale was procured by collusion between Wheeler and Bowman, and not for the benefit of plaintiffs; that plaintiffs were minors, and have never received any of the proceeds of said sale, or any benefit therefrom. The petition sought to have set aside the orders of sale relating to two tracts, — one of 160 acres, in the B. F. Mathews survey, and one of about 17 acres, in the Andrew Piaso survey. Appellee Wheeler answered by general demurrer, and general denial. Appellee Bowman, for answer, filed a disclaimer as to the smaller of the two tracts of land, and pleaded that appellant Effie Burnett was barred by the statute of two years given in which to prosecute this suit; that he paid full price for the tract of land purchased by him under said order of sale; and that he paid to said Wheeler the purchase money for said land, who was the legal guardian of the plaintiffs, and that the sureties on Wheeler's bond were solvent; that said order of sale was legal and valid, and that he purchased in good faith, relying on the order of sale; that he had no notice of any irregularities in the proceedings, nor that no necessity existed for such sale; that the money resulting from the sale had been expended for the benefit of plaintiffs; that at the time of purchase he was the legal owner of the interest of his codefendant, Wheeler, in the lands; that he filed his deed executed under the order of sale for record May 23, 1881. He also pleaded improvements in good faith, and the five and ten years' statutes of limitation. Judgment was rendered in the court below in favor of appellees.

The court below found the facts as follows: (1) That appellee Wheeler was on the 17th day of January, 1881, legally appointed guardian of the persons and estates of his minor children, Effie and Jessie Wheeler, and gave bond in the sum of $3,600, with sureties, who are living and solvent. (2) That March 6, 1881, the guardian filed his inventory and appraisement of the property of his wards to be the two tracts of land described, and other property. (3) April 27, 1881, the guardian filed in the county court application for order to sell the two tracts with other property. The application described the two tracts, and set forth the condition of the estate, and stated the grounds for the sale to be "that the increase of the estate of the minors and the personal property thereof and the proceeds of previous sales are insufficient for the education, maintenance, and welfare of said minors." (4) The notice of sale was issued and served on the same day the application was filed. That the notice mentioned the 160-acre tract, but not the 17-acre tract. The notice was legal in form, and cited all persons interested to appear at the next term of court, which was on the 16th day of May. The time the notice was first posted, on April 27th to May 16th, would not give 20 full days, as required by law. (5) May 16, 1881, the court granted the application, and ordered the sale to be made at private sale. The order did not describe the land, but referred to the application for description. The same day the guardian made his report to the court that he had sold to J. H. Bowman the 160-acre tract for $1,905 cash. On May 23, 1881, the report of sale was approved, and the guardian ordered to make deed to the purchaser, which he did on same day, and was paid the sum of $1,905, — the purchase money, — which was full value of the land. (6) That $560 of the purchase money received by the guardian was paid by him in the discharge of community debts of himself and deceased wife. The balance was invested in a mercantile venture, and was lost. None of the purchase money came into the actual possession of the plaintiffs. (7) That Bowman was only chargeable with notice of the recitals of the order and confirmation of sale. That he had contracted with the guardian for the purchase of the land before the application was filed, and he knew the sale was being made to carry out this trade, but...