McKinley v. Salter

• Court: Texas Court of Appeals
• Writing for the Court: Price
• Citation: McKinley v. Salter, 136 S.W.2d 615 (Tex. App. 1939)
• Decision Date: 02 November 1939
• Docket Number: No. 3869.,3869.
• Parties: McKINLEY et al. v. SALTER et al.

Page 615

136 S.W.2d 615

McKINLEY et al. v. SALTER et al.

No. 3869.

Court of Civil Appeals of Texas. El Paso.

November 2, 1939.

Rehearing Denied January 4, 1940.

Appeal from District Court, Gregg County; Walter H. Strength, Judge.

Certiorari proceeding by Luther McKinley and others against R. L. Salter and others, to review orders and judgments in a guardianship proceedings. From a judgment on a directed verdict for the defendants, plaintiffs appeal.

Affirmed.

J. A. Lantz and Mayfield, Lantz & Mayfield, all of Tyler, for appellants.

Clayton Bray, of Longview, Florence & Florence, of Gilmer, Roy C. Ledbetter, W. H. Sanford, W. H. Francis, Walace Hawkins, and Conan Cantwell, all of Dallas, and Rufus S. Garrett, of Fort Worth, for appellees.

PRICE, Chief Justice.

This is an appeal from the judgment of the District Court of Gregg County. The judgment was entered in a consolidation of two cases numbered 11,275-A and 12,605-A on the docket of that court. These two cases were of the same nature and sought the same relief. Each was a proceeding by certiorari to set aside the same judgments and orders of the County Court of Gregg County in a guardianship proceeding in County Court numbered 1026 and entitled Guardianship of Grady McKinley, et al., Minors. In fact the petitions in the cases were in many respects identical, the only difference being that identical as well as additional grounds of attack were set forth in cause No. 12,605-A to those set out in No. 11,275-A.

The judgments and orders attacked by the petition were as follows: (1) An order of sale made by the County Court on the 4th day of February, 1928. This order directed the sale by M. F. McKinley as guardian of the two-fifths interest of the four minors in two tracts of land in Gregg County, Texas, one of twenty-five acres and the other of thirty acres. (2) An order made by said court on the 18th day of February, 1928 confirming the sale of the two-fifths interest of the minors, Grady, Eunice, Luther and Lewis McKinley, in said tracts of land to R. L. Salter for $360, and ordering the execution of a deed by the guardian on compliance of R. L. Salter with the terms of sale; (3) an order and decree of the County Court made on the 23rd day of March, 1936, in a proceeding by bill of review wherein plaintiffs here, or those in privity with them, sought to set aside orders one and two as set forth in this paragraph. The defendants in that proceeding are the defendants here, either in person or by privity. The decree denied plaintiffs therein the relief sought.

The grounds urged by appellants, hereinafter referred to as plaintiffs, in the consolidated suit were broadly and generally as follows: (1) that at the time the order of sale was made and likewise the order confirming the same, M. F. McKinley was temporary guardian only, and that citation or notice on the order making his appointment had neither been issued nor served; (2) that there was no necessity for a sale of the property; (3) that the property was sold for an inadequate price; (4) that the guardian was interested, in that he owned an undivided interest in the property sold; (5) that the application failed to allege a necessity for a sale of the property and that at the hearing no testimony was introduced to show the necessity for a sale; (6) that the sale was made in pursuance of an agreement between McKinley, before he was appointed guardian, and the purchaser Salter, that McKinley should seek to be appointed guardian, and, if successful, should sell the minors' interest to Salter for $360; (7) that McKinley never sought to obtain a better price for the property than $360; (8) that the order of confirmation of the sale was made in vacation and hence was void; (9) all or most of the above enumerated grounds were set up in the petition or amended petition in the bill of review proceeding in which judgment was entered on the 23rd day of March, 1936.

After the consolidation of the two cases the Magnolia Petroleum Company filed on October 10, 1938 its first amended original answer in the consolidated case. This answer was adopted by the other defendants other than those disclaiming and defendant M. F. McKinley as guardian. McKinley, as guardian, filed under leave of the court an answer setting up that for reasons personal to himself he did not join as party plaintiff; that the said cause was being prosecuted by Grady McKinley as next friend of the minor plaintiffs with his consent and approval.

It might be noted here that H. R. Smith, the next friend of the minors in the bill of review proceeding, was neither a party plaintiff nor a defendant in the consolidated suit.

The amended answer of defendant Magnolia Petroleum Company consisted of a general exception, special exception, general denial and a special plea in substance to the effect that the matters set up in plaintiffs' petition were mere irregularities; that the sale in question was fair, necessary, and for the best interest of the minors.

The trial was to a jury. On the 11th day of October, 1938 the court instructed the jury to return a verdict in favor of defendants. Judgment was rendered in accordance with the instructed verdict. Plaintiffs in due time filed motion for new trial and same was duly overruled, and appeal in due time perfected.

The facts of the case are practically undisputed. On the 5th day of January, 1928 M. F. McKinley filed in the County Court of Gregg County application to be appointed guardian of the estates of his minor children, Grady, then about sixteen years of age, Eunice, about fourteen years of age, Luther, about twelve years, and Lewis, about ten years. On January 12, 1928 Grady McKinley and Eunice McKinley filed in the County Court a written waiver of service and made choice of M. F. McKinley as their guardian. On January 17, 1928 the court entered an order appointing McKinley temporary guardian of said minors and fixed the amount of the bond at $1,000. The order further provided that notice should issue and unless the appointment was contested at the next regular term after the service of citation and notice same should be permanent. Appraisers were appointed in the order. January 23, 1928 McKinley filed his bond and oath and on the same day the County Judge approved same. On the same day McKinley filed application to sell at private sale the two-fifths interest of the minors in the two tracts of real estate hereinbefore mentioned. The application set up that the interest was undivided; that it would be more advantageous to the estate of the minors to sell such undivided interest in the real estate. On February 4, 1928 the court made an order reciting that notice had been given as required by law of the application, and that it was to the best interest of the minors to sell the land, and that the application was granted. A bond was required of the guardian in double the amount of the sale price of the land. The caption of this order was as follows:

                         |   In the County Court of
                "No 1026. Guardianship   |   Gregg County, Texas
                of Grady McKinley et      >  In Vacation, February 4
                al, Minors               |   1928."
                                         |
                

February 6, 1928 McKinley as guardian filed report of sale stating therein that he had sold the property to R. L. Salter for $360 on terms, one-third cash and the balance on credit, one-third in twelve months and one-third in twenty-four months. February 18, 1928 the County Court entered an order confirming the sale. The caption of this order is the same as the caption on the order hereinbefore copied. On the same day, February 18, 1928, McKinley filed bond for the sale of real estate in the sum of $720, which bond was approved February 22, 1928. February 25, 1928 McKinley executed deed as guardian conveying the property to Salter. The deferred payments bore interest at the rate of eight per cent per annum and were secured by a vendor's lien. These notes have been paid in the course of the guardianship.

The deed from McKinley as guardian to Salter recited that the order of sale and order confirming same were made in vacation.

On the 26th day of March, 1928 notice was issued on the order of appointment of McKinley as temporary guardian and served and executed in a legal manner, and on April 25, 1928 the court made an order that the guardianship be permanent.

The last order of the Commissioners' Court of Gregg County fixing the terms of the County Court was made on the 12th day of July, 1923. In substance it was that the court should convene on the second Monday in January and on the second Monday in April and on the second Monday in July and on the second Monday in September of each year and should continue in session for each term until the business may be disposed of. The order provided it was to become effective on September 8, 1923.

On the 9th day of June, 1934 McKinley, purporting to act as guardian, as father, custodian of the person and next of kin and next friend, and H. R. Smith, also purporting to act as next friend, filed the bill of review proceeding on behalf of the minors, Eunice, Luther and Lewis McKinley. Grady McKinley, being then of age, joined in the proceeding in his own right. The defendants were R. L. Salter, E. B. McFarlin, Magnolia Petroleum Company and Rio Oil Corporation. The purpose of the suit was to set aside the order of sale beforementioned and the confirmation thereof. The defendants all filed answers in the suit. February 5, 1928 plaintiffs filed an amended petition and on April 24th filed a second amended petition. This last amendment added A. L. Hughes, F. E. Stancil and J. I. Morgan as new defendants. A judgment was entered in said cause by the County Court on the 23rd day of March, 1936 reciting the appearance of all defendants and adjudging that plaintiffs take nothing. The parties to this bill of review were all of the parties whose interests could be affected by the orders and judgments...