Parker v. Bowers.

• Decision Date: 23 November 1904
• Citation: 84 S.W. 380
• Parties: PARKER et al. v. BOWERS et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

84 S.W. 380

PARKER et al. v. BOWERS et al.^*

Court of Civil Appeals of Texas.

November 23, 1904.

Error from District Court, Lee County; Ed R. Sinks, Judge.

Suit by Willie Louise Parker and others against I. H. Bowers and another. Judgment for defendants. Plaintiffs bring error. Reversed.

Rector & Watson, for plaintiffs in error. I. H. Bowers, for defendants in error.

Statement of the Case.

FISHER, C. J.

This is a suit by the plaintiffs in error, in the nature of a bill of review, against Clarence Tisdale, as guardian, and I. H. Bowers, as purchaser, to set aside a sale made by the guardian to Bowers under and by virtue of proceedings in the county court of Lee county in the guardianship of the estate of the plaintiffs, who were then minors. It is averred that Clarence Tisdale was the guardian of the estate of the plaintiffs in error, under appointment by the county court of Lee county, since 1887; that Bowers was the attorney for the guardian and of the minors in the matters pertaining to said estate, and for his services was paid out of funds and moneys belonging to the estate; that, by reason of fraud and collusion between Tisdale and Bowers during the pendency of the guardianship, there was an agreement to sell Bowers the 99¾-acre tract of land in controversy, and also another tract, of 51 acres, belonging to the minors, at private sale; that in pursuance of this agreement, and in fraud of the rights of the minors, Bowers caused Tisdale to make an application for the sale, and procured an order of sale, and made a report thereof, and procured from the county court a decree confirming the sale. It was alleged that Bowers, being the attorney of the estate and of the guardian, was not authorized, under the law, to purchase, and that therefore the sale to him was void. Further alleged certain facts which the plaintiffs contend are sufficient to avoid the sale, on the ground of irregularity and fraud upon the rights of the minors. The demurrers of defendant Bowers to plaintiffs' bill of review were sustained in the county court, and the case dismissed. The plaintiffs appealed to the district court of Lee county, and also in that court filed an action of trespass to try title for the land in controversy. These two cases were in the district court consolidated. Defendant Bowers filed general and special demurrers, and answered, setting up title to the two tracts of land sued for, and denying fraud, and alleged that he purchased the same in good faith. Tisdale adopted the answer of his codefendant. On the trial of the case the district court instructed a verdict in favor of the plaintiffs for the 51 7/8-acre tract involved in the suit, from which verdict, and judgment entered thereon, the defendant Bowers has not appealed. The court submitted to the jury the validity of Bowers' purchase of the 99¾-acre tract, and submitted to them the question whether Bowers purchased the same in good faith, and also submitted to them the question whether there was a necessity for the sale of the 99¾-acre tract for the purpose of the maintenance, education, and support of the minors. Both of these issues were found in favor of Bowers. Thereupon the court rendered judgment in his favor for the 99¾-acre tract of land, and from this judgment the plaintiffs in error have appealed.

In disposing of this case, we eliminate from our consideration any right of the plaintiffs, if any they had, that may be based upon the action of trespass to try title, and predicate solely our disposition upon the case as made by the plaintiffs' bill of review.

We find the following facts: The plaintiffs in error, Mrs. Willie L. Parker, who was formerly Willie L. Maxwell, was born January 30, 1884; and she is joined in this suit by her husband, Lee Parker, who sues as next friend for the other plaintiff, Occie W. Maxwell, who was born March 10, 1885. Mrs. Parker and Lee Parker married August 11, 1901. They (the minors) were the children of Maxwell, deceased, and his wife, who after his death became Mrs. Tisdale. They inherited the property in controversy as a part of the estate of their deceased father, and the land involved in this suit we find to be the property of the plaintiffs in error. In December, 1887, their stepfather, Clarence Tisdale, one of the defendants herein, was appointed by the county court of Lee county guardian of the estate of the plaintiffs in error. In the same month Tisdale qualified, and returned and filed an inventory and appraisement of the estate, which described as a part of the estate the two tracts of land described in the plaintiffs' petition. On August 11, 1891, defendant Tisdale, as guardian of the minors, applied for an order of sale of the 99¾ acres of land in controversy. The county court upon this application entered a decree directing the guardian to sell the land at private sale for one-half cash, and the balance on a credit of one, two, and three years. The application recited that it was necessary to sell a portion of the real estate of the wards for their education and maintenance, and for the payment of debts against said estate, and that all the personal property belonging to said estate had been sold, and that the proceeds of previous sales of land were insufficient. The order of sale was made on October 5, 1891, and recited that notice had been duly given, and that it was more advantageous to the estate to sell the land mentioned in the application, and that the same should be sold for the support and maintenance of the wards. On October 9, 1891, a report of the sale was made by the guardian, reciting that on the 7th day of October, 1891, in obedience to the order of sale, he had sold at private sale the 99¾ acres to I. H. Bowers for $800—for five-eighths cash, and the balance on credit of one, two, and three years. October 15, 1891, the county court entered a decree confirming the sale; reciting that said report had been filed and docketed according to law, and it further appeared upon examination that said sale was fairly made and in conformity with the law, and that the same brought a fair price, and it appeared that Bowers became the purchaser at private sale for the sum of $800, paying $500 in cash and the balance in one, two, and three years, to be secured as the law directs. A deed was made to Bowers in pursuance of this decree.

It is unnecessary for us to make any statement here concerning the 51-acre tract, as the plaintiffs recovered in the court below judgment therefor. There is evidence in the record which shows that the tract of land in controversy sold for a fair price. It appears from the evidence that Bowers was the attorney for the guardian and of the estate, and that he prepared all applications and reports and procured all orders and decrees had in and about any matter concerning the estate of the minors; that for his services as the attorney of the estate he was paid out of funds belonging to the estate. Tisdale, the guardian, was illiterate, and could not read or write, and he depended upon Bowers for advice and assistance as to the proper manner in conducting the affairs of the estate.

It seems from the evidence that Tisdale's family, prior to and at the time that the sale was made to Bowers, consisted of his wife, the mother of the two minor plaintiffs. He was in straitened circumstances, and, it seems, had no property out of which he could support himself and family. He has never accounted to the plaintiffs, nor have the plaintiffs ever received anything from the proceeds of the sale of this land, nor has he paid the plaintiffs any part of their estate that was inventoried; and it seems from the evidence that all of it that is now left consists of the two tracts of land mentioned in the petition. His ignorance was known to Bowers, and also his pecuniary condition. A short time prior to the application and the order of the sale of the land in controversy, and at a time when Bowers was still his adviser and attorney, and also the attorney for the estate, he informed Bowers of his inability to earn support for his family, and suggested that he would be required to sell the tract of land in controversy. Bowers advised him to sell it, with the statement that the proceeds of the sale would do more towards benefiting the minors and furnishing them support than the tract of land in its then present...