Wall v. Wall, A-310.

• Decision Date: 17 January 1945
• Docket Number: No. A-310.,A-310.
• Citation: 186 S.W.2d 57
• Parties: WALL et al. v. WALL et al.
• Court: Texas Supreme Court

Page 57

186 S.W.2d 57

WALL et al. v. WALL et al.

No. A-310.

Supreme Court of Texas.

January 17, 1945.

Rehearing Denied March 28, 1945.

Error to Court of Civil Appeals of Third Supreme Judicial District.

Equitable bill of review by Viola Wall and others against Nora Wall and others to set aside a receiver's sale under a decree of partition, wherein one Frazier, as guardian of the person and estate of Pearl Denniston, a person of unsound mind, intervened. A judgment for defendants was affirmed by the Court of Civil Appeals, 181 S.W.2d 844, and plaintiffs bring error.

Judgments of the district court and of the Court of Civil Appeals affirmed in part, and in part reversed and cause remanded with directions.

Clarence A. Guittard, of Dallas, for plaintiffs in error.

White, Taylor & Chandler, Ike D. White, H. Grady Chandler, Geo. E. Shelley, and David Tisinger, all of Austin, for defendants in error.

BREWSTER, Commissioner.

This is a suit by Viola Wall et al., petitioners, against Nora Wall et vir., respondents, to set aside a receiver's sale under a decree of partition.

This is the second appeal, and the complaint is that the courts below have misconstrued the opinion handed down by the court of civil appeals on the first. The opinion on the first appeal, by the Amarillo Court of Civil Appeals, appears in 172 S. W.2d 181; that on this appeal, by the Austin Court of Civil Appeals, in 181 S.W.2d 844.

The eight parties at interest, brothers and sisters, inherited 200 acres of land from their parents. One heir, Pearl Denniston, was non compos mentis, so her sister, Mrs. Nora Wall, a respondent here, qualified as guardian of her person and estate. Thereafter Nora Wall, for herself and as guardian, joined by four of the other heirs, filed suit against the other two, Viola Wall, a petitioner here, and Lloyd Denniston, to partition the land. The court found that the parties were the sole owners of the land, that each owned an undivided 1/8 interest, and that the tract could not be equitably partitioned in kind. A receiver was appointed to sell it at private sale. In due time he reported that he had received two bids, the larger by W. H. Wall, husband of Nora Wall, guardian of Pearl Denniston; that Wall's bid had been accepted and the land sold to him. This report was approved and the receiver was ordered to execute a deed to Wall and to distribute the proceeds to the parties after payment of costs. All this the receiver did, paying to each party $252.68.

Some three years later this suit was filed as a bill of review against Nora Wall and W. H. Wall by all other parties to the original suit. Just prior thereto Nora Wall had been removed as guardian for Pearl Denniston and one Frazier had been appointed. Frazier, as guardian, intervened as a plaintiff, and he is a petitioner here. The purpose of this suit was to set aside the sale to Wall on the ground, among others, that it was void as to Pearl Denniston because Wall was her guardian's husband and paid for the land with community funds, which, in effect, made the transaction a purchase by the guardian, in violation of Art. 4205, R.S.1925.

The trial court found that Wall had paid for the land with community funds, but denied the plaintiffs any relief.

The court of civil appeals held, "In our opinion, the sale of the interest of Pearl Denniston to W. H. Wall, the husband of her guardian, was in effect a sale to, and purchase by, the guardian. Under Article 4205, R.C.S., it was void and the court below erred in holding otherwise. The judgment will therefore be reversed, and the cause remanded with instructions to proceed as though no sale of the land had been made by the commissioner." 172 S.W.2d 181, 185. The judgment of the court of civil appeals was: "It is therefore considered, adjudged and ordered that the judgment of the court below be reversed and the cause remanded with instructions to proceed as though no sale had been made by the commissioner, in accordance with the opinion of this Court." (Italics ours.)

Thereafter Nora Wall et al. applied to this court for writ of error. One point of error assigned was that "the parties to this suit, except the non compos mentis, are adults who accepted their prorata part of the proceeds of the sale and are bound by it, and the sale is, therefore, binding upon them, and they are estopped from asserting the invalidity of the sale as to them, and the Court of Civil Appeals erred in reversing this cause and directing that it be proceeded with as though no sale of the land had been made by the receiver." (Italics ours.)

We refused the application for want of merit.

The trial court again ordered the land sold as a whole. No question was raised by any party either as to that phase of the judgment or as to the legality of the sale made pursuant thereto. But the trial court further decreed that, after the adjustment of certain equities between the parties, 7/8 of the proceeds (including $3,646 which had been paid into court upon condemnation proceedings by LCRA against 102 acres of the tract) be paid to Nora Wall and her husband, and the other 1/8, less what she received from the original sale, to Frazier as guardian of Pearl Denniston, but denied any recovery to the other six plaintiffs.

On appeal the question was whether that order of distribution was in compliance with the judgment of the court of civil appeals.

In deciding that question we need not determine whether the judgment on the first appeal is the law of ...