McLeod v. Carroll
| Decision Date | 02 July 1937 |
| Docket Number | No. 5070.,5070. |
| Citation | 109 S.W.2d 316 |
| Parties | McLEOD et al. v. CARROLL et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Cass County; R. H. Harvey, Judge.
Suit in trespass to try title by Velma Carroll and others against J. B. McLeod and others, wherein defendants filed answers and defendant United Production Corporation filed cross-action in trespass to try title. From a judgment on a directed verdict, defendants J. B. McLeod, R. W. Norton, and the United Production Corporation appeal.
Affirmed in part, and reversed and rendered in part.
Vinson, Elkins, Weems & Francis and Thomas Fletcher, all of Houston, Carney & Carney, of Atlanta, and Wallace Hawkins, of Dallas, for appellants.
Newland & Cornett, of Linden, and E. Ewing Smith, of Tyler, for appellees.
Appellees Velma Carroll, joined by her husband, Pete Carroll, Lois Kendrick, joined by her husband, Ernest Kendrick, Edith Ballard, joined by her husband, Wesley Ballard, and J. D. Wall, as next friend of his son, James Wall, a minor, filed this suit on August 18, 1934, against appellants J. B. McLeod, R. W. Norton, and United Production Corporation, and against J. T. Wall, in the district court of Cass county in trespass to try title, seeking to recover a one-fourth undivided interest in 160 acres of land, said 160-acre tract of land being the northeast 1/4 of the Alexander Archer survey in Cass county; or, in the alternative, to recover a one-half undivided interest in the south 1/2 of said 160-acre tract.
Plaintiffs specially alleged that the 160 acres of land was purchased by J. T. Wall and J. D. Wall (who are brothers) from M. T. McDuff and others November 10, 1917; that J. D. Wall and Annie Wall were then husband and wife; that a one-half undivided interest in the 160-acre tract was community property of J. D. and Annie Wall; that Annie Wall died intestate in October, 1918, and that plaintiffs are the children and sole heirs of the said Annie Wall, deceased.
Plaintiffs further alleged that defendant J. B. McLeod was claiming an interest in the south 1/2 of said 160 acres by virtue of a guardian's deed executed by J. D. Wall as guardian of the estate of Velma Wall et als., minors (plaintiffs), and purporting to convey plaintiffs' one-half interest in the south 1/2 of the 160 acres to J. B. McLeod. The orders and judgment of the probate court of Cass county purporting to grant and confirm the conveyance, and said guardian's deed based thereon, were attacked in plaintiffs' petition as being void, upon the ground alleged that no notice or service of citation, as required by R.S. art. 4137, was had authorizing the appointment of a temporary guardian to become or to be made permanent. Plaintiffs' petition further sets out in detail the alleged record of said guardianship proceedings, and asserts certain other irregularities, by virtue of which also it is claimed that said orders and the guardian's deed to McLeod and the oil and gas leases held thereunder by R. W. Norton and United Production Corporation should be declared void.
Defendants' answers contain general denials, pleas of not guilty, pleas of innocent purchasers for value, and pleas of estoppel. The United Production Corporation also filed a cross-action in trespass to try title, specially pleading the 3, 5, and 10 year statutes of limitation (articles 5507, 5509, 5510). The defendant J. T. Wall pleaded that the 160 acres was purchased jointly by J. T. Wall and J. D. Wall, each acquiring a one-half undivided interest therein, and thereafter same was partitioned between them whereby the north 1/2 of the 160-acre tract was set aside to J. T. Wall and the south 1/2 was set aside to J. D. Wall; that such partition was fair and equitable, and in accordance with such partition J. T. Wall went into possession of the north 1/2 and J. D. Wall went into possession of the south 1/2 and has made valuable and permanent improvements thereon; and prayed that the partition be confirmed.
The petition of plaintiffs, as well as the answers of defendants, contain other matters not necessary at this time to mention.
The case was tried to a jury. In substance, the facts show that J. D. Wall and J. T. Wall acquired title to the 160 acres by deed from M. T. McDuff and others. That the one-half undivided interest thus acquired by J. D. Wall was community property of J. D. Wall and his wife, Annie Wall. That J. D. Wall and J. T. Wall partitioned the 160 acres, whereby J. T. Wall acquired the north 1/2 and J. D. Wall acquired the south 1/2 of the 160-acre tract. That Annie Wall died intestate, and plaintiffs as her heirs thereby acquired an undivided one-half interest in the south 1/2 of the 160 acres. That J. D. Wall, as guardian of the estate of plaintiffs, Velma Wall et al., minors, conveyed plaintiffs' undivided one-half interest in the south 1/2 of the 160-acre tract to J. B. McLeod. That J. D. Wall individually, and joined by his second wife, Alice Wall, conveyed his undivided one-half interest in the south 1/2 of the 160-acre tract to J. B. McLeod. R. W. Norton and the United Production Corporation hold oil and gas leases under J. B. McLeod and J. T. Wall. That is to say, title to the north 1/2 of the 160-acre tract is shown to be in defendant J. T. Wall and his grantees of mineral interest therein. That title to an undivided one-half interest in the south 1/2 of the 160-acre tract is shown to be in J. B. McLeod and his grantees of mineral interests. And that title to the other one-half undivided interest in the south 1/2 of the 160-acre tract is shown to be in said defendant J. B. McLeod and his grantees of mineral interests, unless the orders and judgments of the probate court of Cass county purporting to authorize and confirm the sale of said minors' interest, and the guardian's deed executed in pursuance thereof, be declared void.
The original papers in the guardianship of Velma Wall and others, minors (plaintiffs), were shown to be lost, and could not be produced upon the trial of this cause. The minutes and the entries on the judge's docket of the probate court of Cass county were introduced in evidence by plaintiffs, showing:
(1) Application of J. D. Wall for appointment as temporary guardian of the estate of Velma Wall et al., minors (plaintiffs), showing said minors to be under 14 years of age, and praying that citation issue as required by law and that such appointment be made permanent at the next term of said court, filed November 7, 1922.
(2) Order of the court, November 20, 1922, appointing J. D. Wall temporary guardian of the estate of said minors, setting his bond at $500, and appointing appraisers. The order recites that it is made without citation and directs that notice be given, "and it is further ordered that such appointment of guardianship unless contested at the next regular term of the court, after citation, shall be made permanent."
(3) Inventory and appraisement, and order of court approving same, November 20, 1922.
(4) Bond and oath as temporary guardian, with E. C. Wall and J. W. Land as sureties, and order of the court approving same, November 20, 1922.
(5) Application for sale of the minors' interest in the land, and notice in probate thereon, dated January 15, 1924.
(6) Order of the court granting the sale, dated January 21, 1924.
(7) Report of sale, sworn to by J. D. Wall, dated January 19, 1924.
(8) Order of the court approving the sale February 15, 1924.
Plaintiffs introduced in evidence the testimony of Mrs. B. F. Whitworth. She testified that she had been deputy county clerk of Cass county since March, 1931; that she had examined the index to the minutes of the probate court of Cass county covering the period from "November 7, 1922, until the year 1924," and that as pertaining to said guardianship the record of no other matters than those above mentioned appeared in said index during said period of time; that Volume 14 of said probate minutes is the book in which proceedings of the court had during said period of time were recorded, and that she had examined said Volume 14, and that there did not appear of record therein any matters pertaining to said guardianship other than those above mentioned; that she had not examined any of the other volumes or books containing the records of the probate proceedings of said court.
Plaintiffs also introduced in evidence the testimony of Judge Sam L. Henderson, who testified that he was county judge of Cass county; that he held that office in 1923; that Judge Nelson was county judge of Cass county during the year 1922; that witness had before him the judge's probate docket of said court, and that it showed entries thereon in the guardianship of Velma Wall et al., minors, of (1) order appointing temporary guardian; (2) order approving bond and oath, and inventory and appraisement, November term, 1922; that the next entry was in 1924, being an order granting sale of real estate.
At the close of plaintiffs' case, defendants moved for an instructed verdict, which was overruled. United Production Corporation, at the close of its case on its cross-action, moved for an instructed verdict, which was overruled. At the close of all the evidence, all parties respectively moved for instructed verdict in their favor. Whereupon, the court directed a verdict in favor of defendants, J. T. Wall, R. W. Norton, and United Production Corporation, for the north 1/2 of the 160-acre tract; and in favor of the defendants J. B. McLeod, R. W. Norton, and United Production Corporation for a one-half undivided interest in the south 1/2 of the 160 acres (being the interest conveyed to J. B. McLeod by J. D. Wall individually). And the court directed verdict in favor of plaintiffs for a one-half undivided interest in the south 1/2 of the 160-acre tract, which instruction was based upon a finding that jurisdiction of the probate court of Cass county had...
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