Wilkinson v. Owens

• Decision Date: 22 December 1932
• Docket Number: No. 4257.,4257.
• Citation: Wilkinson v. Owens, 72 S.W.2d 330 (Tex. App. 1932)
• Parties: WILKINSON et al. v. OWENS et al.
• Court: Texas Court of Appeals

72 S.W.2d 330

WILKINSON et al. v. OWENS et al.

No. 4257.

Court of Civil Appeals of Texas. Texarkana.

December 22, 1932.

COPYRIGHT MATERIAL OMITTED

Error from District Court, Upshur County; Walter G. Russell, Judge.

Suit by Earl Hobson Wilkinson and others against Henry B. Owens and others, in which defendants Cranfill & Germany filed a cross-action, was consolidated with an appeal by plaintiffs to the district court from certain orders of probate court. To review an adverse judgment, plaintiffs bring error.

Affirmed as to plaintiff Earl Wilkinson and Elton Wilkinson, reversed and rendered as to plaintiff Estella Wilkinson Davis.

The plaintiffs in error, Earl Hobson Wilkinson, Elton Wilkinson, and Estella Wilkinson Davis, joined by her husband, Monroe Davis, brought the suit on August 12, 1931, against Henry B. Owens, C. E. Cook, and Cranfill & Germany, a partnership, to cancel a deed alleged to have been made to Henry B. Owens on December 15, 1917, by C. E. Cook, acting as guardian of the estate of the plaintiffs in error while they were minors, conveying to Henry B. Owens their undivided one-third interest in fifty acres of land in the William King headright survey in Upshur county. It was alleged that (1) the guardianship proceedings were void, in that the appointment was made without notice or citation and without knowledge or consent of the minors; and (2) the guardian's deed was void because the guardianship proceeding was without citation or notice and because the guardian did not make and file a sales bond in double the amount for which the land was to be sold. The petition claimed that Cranfill & Germany were claiming an interest in the premises and deraigned title under the guardianship. The claims of the defendants were charged to cast a cloud on the title of the plaintiffs in error which they were entitled to have removed. The prayer and petition was for cancellation of the deed by the guardian to Henry B. Owens and the conveyance held by Cranfill & Germany from Henry B. Owens and for removal of the cloud cast upon the plaintiffs' title.

Henry B. Owens and C. E. Cook filed a joint answer consisting of general denial, plea of not guilty, plea of estoppel, and, for answer, setting up, by special pleadings, the guardianship sale of the land and the proceedings in the probate court in May, 1931, in confirming and validating the prior sale made by the guardian on December 15, 1917.

Cranfill & Germany filed an answer consisting of a general denial, plea of estoppel, and plea of innocent purchaser of a gas and oil lease on the land, and by way of cross-action, sought in the form of an action in trespass to try title to quiet the title to a leasehold interest in the land and to cancel the claim of plaintiffs therein, and to remove the cloud cast upon the leasehold title.

When the case was reached for trial the court ordered this cause and another cause, numbered on the docket 6106, to be consolidated and tried together. Cause No. 6106 appears to be an appeal by the plaintiffs to the district court from certain orders of the probate court allowing the guardian to make and file a sales bond to be effective as a bond in the sale made by the guardian in December, 1917, and to confirm and approve such sale.

The case as consolidated was tried before the court without a jury, and judgment was entered (1) that plaintiffs take nothing by their suit against the defendants, and (2) Cranfill & Germany on their cross-action recover title and possession of the leasehold interest in the land. The judgment, as material to set out, further reads: "It is further ordered, adjudged and decreed by the court that the order of the County Probate Court of Upshur County, Texas, in cause No. 1151 dated June 8, 1931, requiring the guardian, Cullis (C. E.) Cook to make a new bond and confirming sale of the guardian Cullis (C. E.) Cook to Henry B. Owens, be in all things confirmed and affirmed and the order approving the bond in the County Court should be in all things approved and affirmed and that the order of the County Court of Upshur County, Texas, approving the bond of Cullis (C. E.) Cook and validating the sale to Henry B. Owens of the land above described in the guardianship proceedings of Samuel Franklin Wilkinson et al should be approved and affirmed and the bond of the guardian, Cullis (C. E.) Cook is approved and the sale to Henry B. Owens of the land above described validated in accordance with the order of said County Probate Court and this judgment and decree shall be certified to the County Probate Court of Upshur County, Texas, for its observance and guidance."

In 1917, a guardianship proceedings was begun upon the estate of plaintiffs in error who were at that date all minors. C. E. Cook was appointed guardian. Earl Wilkinson became twenty-one years old in 1921, and Elton Wilkinson became twenty-one years old in 1924, and Estella was married to Mr. Davis on March 17, 1930, before she became twenty-one years old. During the time of the guardianship the undivided interest of the three minors in the land in suit was sold by the guardian to Henry B. Owens. The guardian invested the money realized from the sale of the land in Liberty bonds, and as each of the older minors became of age he mailed to them a Liberty bond and took his receipt therefor. The receipt as given to the guardian recited: "In full settlement of all my right, claim and interest in the estate of John and Florence Wilkinson, both deceased." The evidence is in doubt that the minors knew that the bond was any part of the proceeds of the sale of the land. At the time of the sale of the land by the guardian to Henry B. Owens the bond required by statute to be given by the guardian was not made or filed by the guardian. It appears that in June, 1931, Henry B. Owens, the purchaser of the premises from the guardian, made an application to the probate court of Upshur county for an order requiring the guardian to file a sales bond in the sum of $400 and to validate the sale and conveyance of the land in December, 1917. The plaintiffs appeared and answered these pleadings filed by Mr. Owens and sought affirmative relief therein that such sale made by the guardian in December, 1917, be canceled and set aside. After the hearing upon the application of Henry B. Owens and the answer thereto by the plaintiffs in error, the county judge entered an order requiring the guardian to file a sales bond, which was approved, which order also validated the sale of December, 1917, made by the guardian to Henry B. Owens.

At the origin of the guardianship proceedings in 1917, a waiver appears to have been filed and recorded in the probate minutes, which appears to have been signed by two of the plaintiffs in error, but not signed by Estella Wilkinson. Earl and Elton Wilkinson both testified that they did not sign the waiver, and that it was not their signatures appearing on the waiver. It is not contended that Estella Wilkinson ever signed any waiver. A citation or notice was never issued and posted of the appointment of the temporary guardian or in the making of the temporary guardian permanent.

The deed of the guardian to Henry B. Owens, dated December 15, 1917, recites that an order of sale was made by the probate court to sell the land. The evidence shows the application of the guardian to sell the land, his report of the sale and the order of confirmation of the sale, and the execution of the deed by the guardian to Henry B. Owens. An order of sale made by the probate court was not proven to have been made and entered in the probate minutes, but an entry was made on the probate docket showing the "application of the guardian to sell real estate granted as prayed for."

At the origin of the guardianship proceedings Earl was eighteen years old, Elton was fourteen years old, and Estella was five years old, and all without guardian of either the person or the estate.

Carney & Carney, of Atlanta, for plaintiffs in error.

C. E. Florence and Edwin M. Fulton, both of Gilmer, for defendants in error.

LEVY, Justice (after stating the case as above).

There is presented for decision the points in view, in effect, that there was error in awarding judgment against the plaintiffs and in favor of the defendants for the land, because (1) there was failure of recordation in the minutes of the probate court of an order of the court for sale and conveyance of the land by the guardian, and (2) there was failure to give a sales bond as required by the statutes, and (3) there was failure to issue and to enter in the probate minutes a notice either of the commencement of the proceedings for appointment of a permanent guardian or after the appointment of a temporary guardian as required by the statutes.

It was affirmatively shown that there was failure of recordation in the minutes of the probate court of an order of the court for sale and conveyance of the land by the guardian. There was, however, an entry made on the docket of the probate court of "application of guardian to sell real estate granted as prayed for." A "probate docket" and "probate minutes," and by that name, are record books required by the statute to be kept and used by the probate court. Articles 3295, 3296, 4105. In the "probate docket" it is required by the terms of the statute to enter therein, among other things, "4. A minute of all orders, judgments, decrees and proceedings had in the estate, with the date thereof." In the "probate minutes" it is required that there be "entered therein in full all the orders, judgments, decrees and proceedings of the court, and recorded therein all papers of estates required by law to be recorded." It has been held, in view of the statutes mentioned, that the mere failure to formally carry the order in the probate minutes after being entered in the probate docket is a mere irregularity, not invalidating the deed made by the guardian. Hannon v. Henson (Tex. Civ. App.) 7...