Baldwin v. Davis Hill Oil Co.

353 Co., Cir., Chicago Eye 8 F.2d Shield 157 al. DAVIS BALDWIN et v. HILL 1130; Metal Furn. Co. 168 A.L.R. Doehler CO. OIL et al. 130; S., Cir., N. 149 F.2d v. U. Grimes No. 4700. Co., 989; D.C., F.Supp. Y. Fon Life Ins. Co., ville v. Tex.Civ. Southern Materials Appeals Court of Civil of Texas. Beaumont. App., 239 Hunt v. Southern S.W.2d Sept. 13, 1951. Co., Tex.Civ.App., Materials 240 S.W.2d Rehearing Denied 1951. Oct. may summary judgment 400. A motion for granted appears be not unless that no ma Rehearing Motion Second for Denied controversy, are terial facts and involved Jan. only application is the of the law to undis puted clearly facts. This is rule where sought pleadings judgment

such on the Cir., Washburn,

alone. Friedman v.

F.2d 715. justify judgment

To rendered pleadings must from the say

cause we

pleadings title in the alone that no issue of

plaintiff It thereby raised. does

appear as a of law that the same matter

lands are involved in this case as were

involved in case No. 2525. The basis summary judgment in favor of plaintiff’s

defendant was that all of title had

been divested the enforcement of the

judgment appear in cause It does not all the record that sued lands by plaintiff pursuance were sold in judgment No. 2525. cause

On our own motion we ordered

that certain matters we-then deemed

part herein, up proper of the record be sent appeal. connection with this On more

mature deliberation we have concluded that except judgment

save and in cause No. up the matters ordered certified

improperly up. Appellee ordered certified given purpose

was not of our notice to' or up

der these part matters certified as a transcript. is the uniform It custom of give notice,

this court to but through appellees

some given mistake were not no appellee

tice. It is therefore ordered that

given leave to re file another motion for

hearing, and in connection therewith any portion

have certified the record deem as shown the tran

script augmented transcript. The rec

ord herein no fails to show that there are

issues as facts. to material

It the motion for re- is ordered things

hearing be all overruled. May founded a deed dated M. Defend- Tom Drew.

ants under Moore also hold a chain of title quit claim is founded deed dated from Hen- February F. B. 1910 Andrews, Campbell Bradley, Kurth, & derson, guardian of Tom estate of Houston, appellants. for Moore, to Tom Moore W. R. Wallace. Cleaves, Crys- Murfee & Hospital & and Cleaves was confined in North Texas tal, Houston, appellees. all of for Insane, for his under and estate was Henderson, guardianship by on the date of WALKER, deed to Drew. claimed ti- his Defendants Justice. tle otherwise than this deed title, under but it trespass try The action is in is necessary to- discuss other another, these and appellants against appellees claims of title. disclaimed, to recover title who possession land in Lib- two tracts of and question A made as to the effect County. tract, alleged by plain- erty One guardianship, of Moore’s the validi- acres, is situated in to cover tiffs 1380 ty of his deed to say Drew. Defendants Leagues Leagues grant- 9 of the and void, void, that Moore’s deed was or if not Martinez on Dolores ed Maria was in effect disaffirmed and set aside Jose 28, 1833; this tract extends November guardian’s subsequent deed to Wallace. League across the western end say Plaintiffs that Moore sane when was League adjoins League on into that, the deed made; consequence, aas south, of 1150varas be- distance he had to make a conveyance of League the north line 6. The low land; his deed to Drew was valid tract, alleged by plaintiffs to cover 199 guardian’s subsequent and the deed to Wal- acres, League 9 east situated conveyed lace nothing. tract; north 1380acre its line is the Moore found be of “unsound League line of north 9. Plaintiffs also mind,” and was the County Court of except appellees all of sued the Davis County, McLennan on ad- June Company Hill Oil to recover value of judged a “lunatic” ordered commit- cut and timber removed from land said ted to the asylum at Terrell. This insti- appellees. tution was then known as the North Texas not be de- Appellees’ pleadings need Hospital for the Insane. The order does scribed. not state the cause of mental condi- plain- tion. According to the record Appellants referred maintained will as Hospital, appellees, Moore had one tiffs, and defendants. attack acute,” “mania, lasted “five trial before the cause came on for months,” “alleged and the cause” of this plaintiffs Both sitting jury. court attack “abuse of narcotics.” for an in- defendants filed motions Defendants’ motion was verdict. structed This record showed that Moore was ad- overruled; plaintiffs’ was granted hospital January 21, mitted to on judgment trial court rendered hospital death, He remained at the until his nothing take from plaintiffs defendants. superintendent December plaintiffs ap- judgment have From actually hospital discharged Moore pealed, assigning as error none 2, 1916, from confinement on December defendants’ grounds of the motion various County Court McLennan Coun- valid. ty, on December adjudged that proof plaintiffs attempted to sound title Moore restored For mind. Tech- superior nically, Moore had the they held a title status patient, under of a show Hospital to the subject source of title and the confined common a common to the Hospital’s control of the they officers, for which contended was one source until he title discharged Moore. Plaintiffs’ under confinement; Moore was from Tom but aft- Drew, employee evidently at least er an Moore’s deed to discharge, his he was fact, began accord- time in 1900 institution. As a matter when Moore Moore to work Goodman, Storekeeper’s office as testimony (cid:127) apparent clerk. office of It testi- began is also from the to work clerk mony Accountant of of these men that re- Storekeeper Moore never lapsed Hospital insanity which must have into a condition of time any work addiction he ever had to the continued to have 1900 and Moore However, pri- life. use narcotics was remainder cured. office for the or to appetite did concerning testified Two witnesses drink, which either would could not or and activities. Some Moore’s condition excess, control, and he would drink to parties by the to a references are drunkenness, oppor- and into an he had in “Statement of contained certificate tunity. failing was to Powell known This item, Baldwin; but this Facts” in Drew Goodman, and at and to others doubtless Facts,” and, indeed, “Statement of add this hospital, efforts, usual- and which were testimony wit of the two nothing to the ly not, effective but were sometimes were therefore and need not mentioned nesses deny liquor. made to Moore to This access witnesses, the two One of be discussed. state of until a in affairs continued date Powell, namely, Dr. had served at the Hos 1911 when Dr. Powell had a conversation pital physician a from some date Jan with Moore which resulted in ab- Moore’s at that uary, 1900 until date least, liquor, stention from the use of or at superintendent time he became from excessive use of it. Dr. Powell Hospital, office he held that until a date and say shortly testified: would it “I was after death. subsequent He became to Moore’s superintendent. I first became I called “shortly he after” acquainted Moore with him my into and him wanted office told I January, 1900. physician became him others, to have privileges Ibut witness, Goodman, began to work the other easy wanted make (him) to for me Hospital as a October on at you not drinking. go him to I told years place for this six druggist. held He get drinking. thought town not to to I he Storekeeper appointed and and then was going was to rebel. And rest of the Hospital; he held and Accountant here, suspected time he was I never date 1907. On that July officeuntil he had ever taken a at all.” drink private Hospital and entered he left acquainted became employment. Goodman feel Moore did not of 'his confident abili- years after he three Moore two or with ty to re-enter active life outside druggist brought and he began to work Hospital, and neither In did Dr. Powell. Storekeeper’s into office to as Moore substance, it men feared seems both Both Dr. Powell and sist him there. Hospital if Moore left the fond- his acquainted intimately Goodman were for drink and the and strains ness stresses qualified to know Moore, and were both subjected of life to which would he condition was dur what Moore’s mental would him cause habits revert acquaintance period their and lead his being had committed to thus, of Moore’s to Drew. the time deed Hospital. Dr. Powell still felt this friends of Moore Dr. Both men apprehension opin- but was of the devisee. was Moore’s Powell kept ion that he then could not Moore Hospital men, his Moore testimony of will. According these 10, 1905, any never May manifested to be perfectly sane desire dis- charged until the Drew, discharge granted deed to of Moore’s the date in, him in impelled weakness or limitation to re- no abnormal quest except Hill, his kinsman of will an addic- who want- upon, his apparent ed drink; and it this done order from the to collect some tion Despite money men that these Moore. testimony discharge Moore had subject sane, adjudication confinement although this addic- prior County Court of long County, time tion, very the date Mcl#ennan passed sale was his own of on March Hospital of at the Moore remained reported Ayres, He the employee. sale made of an choice, status month, in addi- This sale confirmed an oif salary of paid a $25 March his room. his meals tion to completed. Ayres sale was not be- of 1911 agreement least At after appli On Henderson filed Moore, has been Powell tween June cation to Lib to transfer the privilege of mentioned, had the the latter erty County; Ayres alleged and he Hospital grounds of the leaving the ap complete had refused sale. Powell said unaccompanied. Dr. will and plication alleged further that Moore’s no recollection of that he had only child resided agree- privilege before this having such however, part” said, County “greater, and that made. Goodman ment was Liberty County. The and that ward’s land was in out himself Moore went remov guardian’s sureties consented to the placed upon Moore was restriction guardianship by al a document requirement return to the Hos- that he 28, 1903; July was filed on 'removal pital certain time. not later than a Sep of the guardianship was ordered on is little evidence that competent There 8, tember These proceedings 1903. oc prop- any about Moore concerned himself curred County Court McLennan of his, erty the indications are of and County. transcript proceedings A of had brought at- property matters were to his County in McLennan Liberty was filed in persons. by other Moore was tention 1903; County 10, on December and such indigent patient an and thus classed as subsequent proceedings as proved were income, or at least none evidently had no were had County Liberty Court of in However, any consequence. there was of 'County. evidence from that Moore knew Goodman 1905, July 23, noting On after ap that he owned and knew he property, proval 10, May 1905, the contract on Dr. had had Powell heard guardian. (the date Drew), of Moore’s deed to Plenderson, Moore a relative of refer to a County County Court approved Moore’s, anything not but he had observed April contract dated 1905 between that Moore which indicated knew of a Henderson, and guardian, as one L.W. guardian. Thomas, whereby Thomas employed was application guardianship for Henderson’s suit, the title the land clear in for con by the Moore’s estate was Coun- granted property of the sideration of one-half re ty oif McLennan County No- May covered. Moore’s deed to Drew of term, applica- vember Plenderson’s day 1905 made after was 11th tion alleged person Moore was “a days prior date of this contract and 44 unsound the insane mind—now confined in approving order contract. The Terrell,” asylum at ap- and the order of what, proof does not anything, show pointment, effect, in recites the same facts. Thomas under this In did contract. Moore, Moore had named a son D. D. but years (the guardian’s two later ex some appointment right son his in waived September 1907) hibit was sworn to on favor Henderson. applied again authority for Henderson land, proceedings only Various had property in this sell guardi- anship proved; estate, and this maintenance” evidence “for the of the ward shows that the guardianship re- payment attorney’s was “for fees.” voked and was active on the date of alleged He further reason that ti Moore’s Drew. deed to Thus litigation. The exhibit tle attached was Janu- term, ary guardian applied application to this listed the land as the County Court County of McLennan for property au- belonging item to the es suit, thority to the land alleging sell now a claim and listed tate estate that the land others, encumbered was with taxes W. L. Thomas and two W. L. which the pay. ward could not Bingle Stevens, An C. F. one-half of land, “attorney’s proof fees

the value of the This be summarized tend- .appertaining (1) to said land.” to show facts: On date services these Drew, passed on October Moore’s deed to Moore was sane. of sale was An order However, law, day was, patient (2) he same and on the Hospital Bingle. subject L. was to W. the land confine- reported a sale of such, on October ment as and to the control the of- confirmed sale was This Hospital. acqui- was never com of the Moore (3) that it we infer ficers but in, applied later for esced indeed this state of pleted, desired since affairs, convey the there authority good reason for granted and was (4) attitude. estate was The record does Moore’s under to Wallace. land guardianship Liberty County application for au and this when Henderson’s show active. knew Moore land to Wallace thority convey guardianship and probably had conveyance authorized filed, but the knowledge 23, 1909, he made and this when the deed to dated October an order Drew. was dated to Wallace deed Henderson’s quoted The order February nothing There is the record which apparent and it application verbatim any suggests committed application, of from consideration fraud, guilty any imposition upon or was order, that Henderson the deed his ward. convey, and that attempting The effect of Moore’s guardianship him to con 'Court had Probate validity Drew, of Moore’s deed to the land vey title as existence, not, in the Pro- jurisdiction of took that court disregard 'bate Court di- deed as estate, not such title and was Moore’s guardian to convey rect the to land his deed to might after have depend upon Wallace the Articles of the for the deed The consideration Drew. of 1895 Revised Statutes now be men- sum; a and substantial $2500, Wallace tioned, in which were force at all relevant g conveyance ground makin times. was the guardian alleged diffi 2593, R.S.1895, provided: Article “The against establishing title in Moore culty of a guardian office, of in minor continues un being exerted which were claims law, discharged according sooner less title, of which none Moore’s s the minor arrive the age until of of Probate Court The order Drew. years, or, twenty-one female, a being mar exercise of Court’s represents an ries, until or minor die.” such shall the guardian to com authorize 2594, R.S.1895, Article provided: “The involving claims disputed promise person of a unsound property. Such a transaction shows mind or an habitual drunkard shall continue in of- the ward’s to transfer Wallace an .intent fice, discharged unless sooner according to full title. law, until the ward shall be restored to proceedings we listed The correct, mind habits, sound sober or to as guardianship had in the ones are the may be, or shall die.” case estate, other than inci Moore’s some These statutes were Articles 2512 guardian’s qualification, which and dental to the 2513, provisions R.S.1879. proof. of this evidence shown Earlier are (1) had been made in sort the guardianship Act of not show does 20, 1848, 36, March Sections 9 and opinions P.D. to the According filed in closed. 3919; (2) August 15, and 3892 Act of Henderson, Tex.Civ. West Co. Lumber 1870, 396, 343 and Sections P.D. 6928 and App., Tex.Com.App., S.W. and 238 710 18, (3) August the Act of 1876, Sec Henderson filed a 252 suit in S.W. 1044, 38 and 146. 4128, tions Also Article see land; in the ward’s behalf recover R.S.1925, Vernon’s Ann.Civ.St. art. 4128. Moore, adjudged in who was 1916 to 2750, reason did not provided: be restored intervene in Article R.S.1895 “If until 1918. any person allege writing shall in this.case under provided as adjudged guardian discharged, and the has been person oath that who chapter.” following of this mind, an habitual articles or unsound to be right his drunkard, restored has been R.S.1879, 2682, This statute was Article habits, case correct, as the mind, or to sober provisions material of its as are and such person and be, guardian of R.S.1925, 4296, Vernon’s here are in Article cited shall be ward the estate such pro 4296. The Ann .Civ. St. art. day county judge on appear before R.S.1879, 2682, visions Article differed citation, named in such place Act of 1848. from relevant sections of the vacation, and show in term time or either 36, 3919, 31 and P.D. See Sections dis be why should not cause such ward 20, 1848, pro the Act of March or the charged guardianship, from further However, cited visions of Act above. citation.” appear such guardian may without of 1870 and contained Acts 2682, provisions Article R.S. similar to “If the 2751, provided: R.S.1895 15, August The Act of 1879. See doubtful, alleged restoration be of such fact P.D. 406 and Sections shall, time or term either the court 6992; (2) August The Act impan- qualified be vacation, jury to cause 184 and 185. Sections instance, first try the eled to issue jury that the it be found ward, In the the death óf case or mind, right his has restored to marriage ward, female minor reformed, discharged he shall or has age twenty- of a accession minor by an that effect order to years (events one mentioned Art. 2593 minutes, upon the entered determining guardian’s “office”, immediately accounts and settle shall guardianship), Art. it is held remaining in property up all the deliver powers that the and of thi. to such ward.” his hands Probate over ward’s estate cease events, the occurrence these ex provided: “If powers which, effect, cepting those are alleged restoration be fact of such proper incidental regarded as settle inter- doubtful, may, without the the court closing guardianship; ment and discharg- the order jury, make vention has been this result arrived at under Section guardianship, from ward ing the 1870, (the 343 of the Act of P.D. 6928 preceding article.” provided in the error) court’s citation to P.D. 6929 is an 2668 were Articles statutes three These 1876, under Section 38 of the Act and R.S.1879, 2670, changes some and with exactly like Section 343 which is of the appear 4282 in Articles here immaterial 1870, without Act reference to the other R.S.1925, inclusive, Vernon’s Ann. 4284, Acts, provisions above, of those two cited Other statutes 4282 to arts. 4284. Civ. St. 2764, which are similar to Article R.S.1895. purpose have been accomplish the same Timmins v. Bonner & 58 Long, See Tex. pro No not be stated. but need enacted 554, Alston, Parish v. 65 194. Tex. For appeared in the Act of sort of this visions concerning the decisions effect of the procedure However, a 20, March 1848. marriage, Fittes, female ward’s see Fort v. sanity or to sober declaring a restoration 593, 563; Stovall, 66 Tex. 1 S.W. Allen v. (1) The Act of prescribed was habits 618, 863, 777, 94 63 Tex. S.W. 64 S.W. 406, and 15, 1870, 405 P.D. Sections August 2764, 1895; referring to Article R.S. Car 6991; 18, August Act the 6990 Soloman, penter 4 v. Willson Civ.Cas.Ct. 183 and 184. 1876, Sections 34, 1074, 14 App. citing only S.W. deci § R.S.1895, provided: necessarily sions but decided 2764, under the Act “When Article Tex.Civ.App., 1876; Peschel, Kretzschmar v. dies, if minor or arrives at the the ward 1021, referring twenty-one years, or 44 S.W. female Article age 1 mind, 2764, person of unsound R.S.1895. For decisions marries, concerning if a or drunkard, minor restored and dis- ward’s majority, is habitual or effect of Stovall, supra, Duncan, Allen v Hix guardian- see v. guardianship, charged from 422, Tex.Civ.App., 99 citing S.W. immediately and closed Articles ship be shall settled 360 2764, R.S.1895; Sure concerning American statute guardian’s

2593 “office”. Hardwick, Tex.Civ.App., provided S. It 186 is ty v. Co. 2594 that of the the case death of or In lunatic con- W. drunkard 105. insane, tinues “in occurring' after the office”until ward is ward who “restored correct, habits”, sound mind or to but before the Probate guardian’s sale sober sale, Except or dies. held the case of confirmed death the Court sale, determining event guardian’s confirmed been “office” is completed by restoration to sanity sobriety, or and had Probate Court absolutely statute in form guardian, equivalent of Arti- deed from However, cle 2593. provides, that the orders the Probate 2764 void and not that the subject guardianship to collateral attack. were shall termi- governing nated when the is in 1909and ward occurred “restored sound The sale correct, provisions mind or to of the Revised sober habits” but statutes it shall be settled have cited above. and closed 1895 we when the lu- Statutes of natic provisions of drunkard is dis- Articles “restored The court cites appear charged 4296, guardianship”. from In case 4128 and ward, guard- Easter death of an R.S.1895. insane 2594 Articles duty ian’s Bean, 49 under Tex. Article 2764 121 S.W.2d to settle line v. exactly close the involving effect of upon- arises decisions For other the same event upon guardian as it the ward does when ward the death minor; up but if group cases insane ward is re- ship, see the Fortson, v. specified Tex. Fortson stored (the 57 mind Veal v. sound event Halbert, Article v. Alford, and Alford determining Tex. R.S.1895 75; “office”) guardian’s duty also see S.W. settle 74 Tex. 541; arises, close the guardianship Marlow v. Gray, Tex. Young v. Carpenter subsequent event 154,2 but S.W. “dis- Lacy, Tex. Buie, charge[d] guardianship”. from supra; Tex. Soloman, Files v. 19, 112 S.W.2d Since Articles 2750 inclusive, R. S.1895, are the statutes we have found However, comparison of Articles which were in provided force and which R.S.1895 shows 2593, 2594 and a method for obtaining a “discharge[d] made between difference a material guardianship” we infer dis guardianships the determination required charge in Article R.S.1895 and drunkards on the lunatics estates of prerequisite as a to the settlement and of estates of guardianships one hand closing of the guardianship is that which hand—the death the other wards minor provided for in these statutes. There given same effect in being were statutes in force which authorized provides Article 2593 Thus all instances. discharge Moore’s from confinement at the “in of a continues minor that the Hospital, evidently these but statutes are twenty- dies, becomes ward until office” not relevant. See Articles 102 94(3), female, marries. old, being a or years one 104, IX, of Title R.S.1895. other event for no adds Article 2764 proved It was as a matter of law that in guardianships; these of determination Tom Moore was discharged not from only same determin effect, provides guardianship prior Thus, to 1916. if he provides the oc events, for it Drew, was sane on the date his deed to events which Article currence necessary it becomes to determine the effect terminating to as referred are 2593 requirement, 2764, made in Article “office”, guardianship shall guardian’s of the ward's discharge guardianship from How and closed”. “immediately settled be before guardianship was to be settled of a ward is lunatic who case ever, and closed. require drunkard, 2764 adds Article event, question is, powers real determining new whether the ment, that the of the Probate deal with specified Article not ward’s res- suspended by sanity may part regarded ward’s be estate were as during period persons sanity, duty be- State’s toward such necessary toration to protection; we in fact and tween the ward’s restoration be done for their requirement restoration. infer judicial declaration of that the Article guardian- discharge R.S.1895 from found no the courts We have decision ship sanity be- well as a restoration the statutes construing of this State settled guardianship fore the was to be question. The were in force the times protection and closed was made for the Elston Jasper, decision in v. Tex. ward, directly protect since it tends to rely, was decided the defendants the ward’s interest. and as we have stat- under the Act ed, provision like no this statute In contained a series decisions 'Courts of Civ Further, are not appeals, we satisfied il Article it 'has held Ar been that under court in Elston v. reasoning that the ticle “discharge from Jasper guardianship” is consistent with followed pursuant Articles other decisions 4284, inclusive, R.S.1925, cited above. same effect guardian’s powers did the language R.S.1895 determining specified events Ar very guardian- strongly indicates See, ticle 4296. Schumacher State John ship lunatic be set- ward Tschiedel, Tex.Civ.App., Bank v. 92 S.W. closed, thus, tled powers that the 571; Marsters, 2d Tex.Civ.App., Green v. relating of the Probate Court to the ward’s Tipton Tipton, S.W.2d v. Tex. property, suspended were not until Civ.App., 140 S.W.2d It is a neces discharged guard- from ward had sary implication judgments from these ianship as well mind. as restored sound “discharge[d] guardianship”, until prac Such a construction seems required by R.S.1895 was tical rule for the administration of the made, determining event had not oc guardianship of an insane ward’s estate. powers curred of the Probate apparent It is that a declaration of resto suspended. Court were not The relevant sanity ration to is not an automatic conse provisions 4296, R.S.1925, of Article are quence an application Both therefor. 2764, R.S.1895, those Article these n guardia and ward believe that authority are decisions for the construction guardian ward should be discharged from of Article R.S.1895. ship yet may be of the Probate Court opinion. We conclude that the a different For an illustration see pending active, of Moore’s estate was Ferguson Ferguson, Tex.Civ.App., powers and that Injury S.W. 682. Probate Court to the ward and to the suspended over this estate were but might estate Probate result existence, when Moore made Court and the did not have deed to Drew in when to act Henderson between the time the ward’s apparent was authorized in 1909 to return make his deed sanity became evident Wallace, actually and when Henderson date of order declaring complied with the sanity. restored to Probate February, by delivering Court this Furthermore, requir- exist reasons for Wallace; deed to and since the guardian ing a judicial declaration that the ward has obviously office, had not abandoned his the sanity to returned the guardian- before jurisdiction Probate Court’s to authorize ship is to be terminated. Demonstration to guardian the make the deed to Wallace expert require opinion; this fact well not limited or affected Was Moore’s res sanity the fact of restoration to differs sanity. toration to death, marriage, from the character facts of given age, holding, have attended certain inherent In so we effect to R.S.1895; proof to question do not difficulties which attach proof sense, arises, the In given of these other facts. a what effect shall be judicial 2594, R.S.1895, provided a investigation of ward’s return the greatest which could “continue in self had. The effect

guardian of a lunatic should is to implied given he be to the ward’s to Drew (and deed office” until therefore it same putting construe as after) Drew should not “continue office” relationship grantor property It Ae as his to mind”. to ward was “restored sound had Court might argued greatest that the effect since the Probate had; be power given that court is that divest ward of title this statute could be necessarily to divest Drew had guidance a rule not, conveyance given This his which did title. is the effect performance trust however, property an is under ad- jurisdiction of heir affect Ae Templeton Ferguson, cor- ministration. v. this be If construction See Probate Court. page In question. The Tex. rect, ward's S.W. it another raises proper place, guardian’s the second deed was of record in deed to Drew by Wallace with the ward’s was inconsistent Henderson was authorized convey meaning to deed to Drew Ae of the the land within Court Probate charge Jones, rule stated Teat Wallace Tex. this deed Wallace. Did notice of S.W.2d We construe the order in title with and his successors authorizing and the Probate the deed to of the deed Court sanity the date on Moore’s by Wallace, guardian’s duty perform- deed possible breach with notice order, its ante- as intention question, expressing guardian? This Ae convey of the given Article to Wallace interest cedent, be . effect to taken here. Under ward of which Probate Court had decided not be need jurisdiction, ac- the full guardianship was this interest was proof, the plaintiff’s we have title of the ward As have and as land. we interest tually in Moore’s out, paid pointed guard- the consideration Wal- probably knew of stated, Moore not, money lace considerable sum of he did or ianship. wheAer But further, Hospital purpose there order and leave want to did not deed, namely, compromise, He to effect a preference. his good reason obtaining accomplished dis- would not have been if interest no manifested guardian’s party conveying a third deed be construed until confinement charge from chance what might to collect some of title ward in order do so him to caused have had after be man- deed to This had to Drew. pi-operty money. Moore’s Baker, distinguishes not do this the case from someone, could Stuart v. and he aged page discharged from 17 Tex. where the minors’ until himself quitclaim subsequent given could not deed could be guardianship. causing operate effect on such without of trust a breach charged prior disaffirmance of his deed. The mat- here. we proof as really intention, ter is one of and we think has been made discussion Some that the Probate Court intended an effec- deed to Drew Moore’s whether question tive transaction. question This also absolutely void. argue Plaintiffs We hold Aat had determined. not be need legal title conveyed any rights land 'and that his to Drew deed deed Moore’s vested Drew with They au argue title. Drew, Probate Court’s Wallace, further the Probate guardian’s deed Court could not thorizing the divest Drew’s title and itself, legal effect had the deed bring In a suit to set the Drew. deed Moore’s deed to aside. disaffirming This rule of decision is applicable within the property was place, the first this case because Ae Probate Court ac control and under the jurisdiction quired jurisdiction of the this deed. estate the date of Probate before the convey ward undertook to by act not this unilateral the could The ward guardian land to Drew. The jurisdiction had property from the listed his withdraw in inventory the land his county he could not con the Court Probate the of County court of had McLennan right then he him- greater a authorized Drew vey to 2763, R.S.1895, Holt, Tex.Civ.App., 69 Articles 2758 to Vernon’s S. its sale. Neal v. inclusive, the rule exemplification Ann.Civ.St. arts. 4290 to is an W.2d 603 governed guardianship in iby plaintiff; is not the transfer of the for it contended county was from the of McLennan Coun- point there ward’s deed court because the open. ty County. county guardianship Liberty was court of the made before argue application Plaintiffs also for am statutes, Of provided: these Article 2761 convicting one judgment that a of the rule “When such order of removal has been presumption insanity creates rebuttable made papers the shall clerk recorS all continues, and that mental condition recorded, guardianship required the to be person’s upon proof of that the convited recorded, already and that have not been deed, will sanity the the deed date his complete and shall make out full and applied rule been enforced. This has transcript orders, certified of all de- the the ward many cases where the in estate crees, judgments proceedings such so fai- guardianship; but was under not guardianship', payment his the ns have been able to determine ha,s we transcript, fees therefor shall transmit such against applied in this State never been together all original papers support of the estate guardian case, to county the clerk of the court of by after deed made county to which guardianship such 'been has Thorn opened. guardianship was Smith removed.” hill, Com.App., contains Tex S.W.2d provided: Article 2762 “The re- indicates language which some indefinite moving a guardianship shall not take effect plaintiff Iby rule contended for transcript until provided pre- for in the applied guardian would be ceding article has been filed in office ward while support of deed made of the county clerk of the court the lan pending, guardianship was but county to which such guardianship has It that the rule guage seems to us is dicta. removed, ordered and until certificate of by plaintiffs materi is of no contended same, fact from the clerk filing the powers Probate ality of the here since seal, under his official has been filed relating property were to the ward’s court making order of removal.” by the suspended ward’s restoration stated, As we have county court of accordingly sanity and Probate 'Court County McLennan directed a removal of powers. jurisdiction to exercise these had guardianship to the county court of applied it would not settle rule -were If the Liberty 'County by 'an Sep- order dated jurisdiction. Whether the effect 8, 1903; tember and a transcript of the support a direct attack facts would proceedings had County McLennan is, of the Probate Court the orders Liberty County filed in on December us; course, question which is not before 1903. It 1909that the plaintiffs’ suit is collateral attack county court Liberty disposed accordingly. must be County to malee the deed Wallace; and question is made whether as to A time, before that and after transcript County county court was filed in jur- court exercised of Moore’s jurisdiction isdiction over t ward’s estate in other that cour authorized estate proceedings which we have listed above. to make the Wallace. deed to provided argue that a The evidence certificate shows 'a Plaintiffs certificate not filed Containing R.S.1895 Article information called for County 2762, R.S.1895, court of McLennan dated December 20, 1915, deed to filed in the comity until after court of County Wallace, and that this court not lose McLennan did December guardianship, does evidence jurisdiction why show this was d done, Liberty County instance.; di not nor 'at whose county court and the ev guardianship, idence jurisdiction of the not show acquire does whether some prescribed was filed. in the form certificate certificate until 3G4 suggestion

2762, or made of in was was not one interested another either Liberty County, assumption by County proceeding. of made here the Clerk is county of similar those made in following not in court was or was filed Hardy 562, cases: Beaty, the certificate of v. 84 Tex. County before 19 McLennan 778; Templeton S.W. Ferguson, filed in v. Tex. 1915 made and was McLennan 89 47, 329; Robb, 33 also that the certificate S.W. v. 35 Tex. County. We note Jones 399; Civ.App. 263, page been 80 S.W. 395 at that recites Crockett, Frost Liberty County; Tex.Civ.App., v. in 109 S.W. under administjation 2d 529. plaintiffs general applicable For no aid. rules affords but this recitation in see, a case of this sort in addition to argument that is of plaintiffs’ effect cited, the decisions the following: Guil 1915is to regarded in filed certificate Love, ford 715, v. Tex. page 49 735 et filed; which was certificate as tlie such seq.; Robinson, 368, Martin v. Tex. 67 3 2762, con R.S.1895 must be that Article 550; S.W. Masterson, Weems v. 80 Tex. result, juris literally; that as a strued 45, 590; 15 Lyne Sanford, S.W. v. 82 Tex. guardianship did vest not diction of 847; 19 Miller, S.W. Bouldin v. 87 Liberty County county of before court 940; Tex. 28 S.W. Taffinder v. Mer 22, 1915,the when the cer date December rell, 177; 95 Tex. 65 S.W. Moore v. County. in McLennan filed tificate was Hanscom, Tex. 106 S.W. say, among arguments Defendants 150; S.W. McLeod, Carroll 133Tex. made, plaintiffs, reply by them in 277; Woods, S.W.2d Sloan v. Tex. plaintiffs, argument made Com.App., 25 S.W.2d Berryman v. suit, attack order a collateral Biddle, Tex.Civ.App. 624, 107 S.W. 922. Liberty County; county court question A is made as Mc filing of a certificate in county Liberty court of County to County compliance with Lennan make an order of the sort which that 2762, R.S.1895, prerequisite was a court convey jurisdiction over the vesting guardian land to Wallace. ship county County, court of Liberty The guardian’s application compliance county with Article R.S. court Liberty County, far county Liberty court so as it 1895 before the material, reads: County made order attacked must be assumed. Henderson, “Now comes B.F. Guardian Moore, Tom respectfully represents agree with defendants. We persons various and divers are assert- statutory certificate was filed Whether claims to hereinafter described county Liberty court of or not before tract of land claimed the Estate of Tom authorizing made County Moore, (Description to-wit: land).” question fact Wallace was deed to description “The above is intended open by that determination court include right, all title trespass try and claim of title) being (in this suit estate said Tom order, Moore upon that held him attack it will be collateral under Moore, his father D. D. in and support of that order that a assumed parts Leagues all Nos. 6 and proper form was situated filed Mc certificate Liberty County, Texas, originally grant County court of before Lennan Martinez, toed D. which the County the order said D. D. attacked— Liberty J. may have acquired claimed to have prerequisite to the transfer awas if this title any virtue of transaction guardianship. We jurisdiction proof affirmatively sale the Administrator of does Davis, think Jos. done; litigation That deceased. this was is now pending show in the District Court unreasonable. assumption County, is not Another styled M. S. well McCardell et al. v. may very have Wright been filed certificate L. et al. No. Collins certificate lost, involving precaution, title to the above filed as described land in on account facts circumstances Guardian, the estate of the your petitioner, adjudications previous set forth and of Moore, Defendant. is a Tom of said respect with the which to the title under represents petitioner further “Your exceptras he holds said estate Guardian of property above described he claims successfully against prevail said adverse administra by the made a sale virtue petitioner claimants. Your further desires Deceased, D. Davis, to D. tor of Jos. say adjust to the Court that he can Tom Moore Moore, the said ancestor of compromise who with one Wallace W. R. ago, that years forty-eight (48) about is acquiring said adverse titles who dis- held for the is which the same title under putes your petitioner, con- the title of depend Moore must Tom said Twenty-five ($2500.- sideration of Hundred Davis, that the by the said title held Jos. 00) Dollars in cash.” against Moore is estate of Tom title “Wherefore, prays your Honor, pend he No. in said Cause plaintiffs Liberty an order entered him to authorizing Coun be District ing in the Court compromise adjust claim to, by said adverse attacked ty, referred is above to said the heirs lands the said consideration who are plaintiffs in said cause Twenty-five petition your ($2500.00) Hundred Dollars.” That Davis. the said Jos. any convey find er never able has proof ap- when this does show of said Administrator from the ance plication Jos. filed. Moore, and against D. to said D. Davis order of court of rely compelled to Davis. Title is the said County, 23, 1909, granting dated October and circum orders of said Court application, material, so far as it prop purchase of said show stances to Court, hearing reads: “And after said parties to said That certain other erty. application support and the evidence and devisees under hold as heirs suit who same, that it finds will for the in- be Hardin, deceased, disput also are William terest the Estate of Tom Moore to Moore, said Tom and that ing title to the grant same. involving oth preceeding litigations in two Ordered, Adjudged It is further De- surveys of land er of the same which parts Application granted creed that said be respectively were held and claimed that the Henderson, F. B. Guardian of said persons under the said aversely Moore, Compos the Estate of Tom non titles, said Davis and the Hardin to wit: Mentis, hereby he is authorized and and. finally adjudicated in the United a cause relinquish, assign directed to and transfer Appeals Court at New States Circuit Wallace, right, said W. R. all inter- it was held that the said Hardin Orleans est and the estate claim of of the said Tom superior title was to the said Davis title land, Moore in and to the above described adjudicated and in a cause which was upon payment the said W. R. Wallace appeal from the District Court Harris Twenty-five ($2500.- of the sum of Hundred County, Texas was held 00) Dollars.” Antonio, Appeals Civil at San Texas that superior February, Hardin title In Davis Wallace, conveyed And that the his deed to which title. statute of limitation in suit, referring behalf of Davis title could not ward’s interest in land be suffi interposed order, ciently in this deed to this at- said Hardin deed, petitioner represents pay- tached and reciting title. Your further Wallace, that W. R. who has to him the contracted to ment $2500 over the said price take Hardin title above he was to receive from tract described land also acquiring Wallace. plaintiffs title held in said cause No. say that this Plaintiffs transaction was to,” above referred really a land, subject sale ward’s “Wherefore, your represents governed petitioner 'by matter the statutes land; regulating not on the sales of the could account the charac- conveyance ter of the title of the and that said was not Tom Moore made for reg- minutes, fully setting tered any purpose the statutes forth point granted.” the authority as far as their ulating sales. This is argu- goes, in their 5) of error but (No. part This statute was of Title which they to circumstances ment refer XXXIX, governed which the administra and the suggest that Wallace tion of “Estates of Decedents.” Guardian of the claims of adjudication awaited an ships regulated by were Title LI. Under heirs, Hardin and title made that Fidelity holding made in Browne and to Wallace the deed was not delivered Deposit Company, 98 Tex. 80 S.W. Liberty District Court of after the until provisions authorizing of this statute judgment against County rendered had regulating compromises and making probate proceedings do The these heirs. property or relating settlements to of a con- made not show that Wallace dispute litigation which is in or interest and the im- buy the ward’s to tract thus, applicable made guardianships to by the plication breach of trust of a one estate, by to the guardianship of Moore’s argument sug- also guardian. Plaintiffs’ R.S.1895, Article Vernon’s Ann.Civ. hereinafter, that order gests, as noted provisions, art. St. which “The read: compromise within the attacked is not a regulations govern rules and estates 1987, R.S.1895, Ver- Article meaning of apply govern decedents shall to Ann.Civ.St. art. 3430. non’s guardianships, such whenever the same are reply, argue, Defendants applicable any and not with inconsistent power exercise of a an order attacked was provisions of the of this title.” And see: compromises in re or settlements to make 2742, R.S.1895, Article Vernon’s Ann.Civ. of the ward which was property to lation art. St. provi read: “All the litigation; power dispute this relating sions of this title guardian to the conferred, ex the method of its ship persons of the and estates of minors Article prescribed R.S. ercise apply shall per of the regulating the statutes persons sons estates of of unsound appli land were not ward’s sales drunkards, mind and habitual in so far as argue further Defendants cable. the same are applicable and not inconsist attack, the at order being collateral suit any ent provision chapter.” of this subject and the to review tacked is why see no provisions We reason Court com the Probate question, whether 1987, R.S.1895, Article authorizing com making facts in error under-the mitted promises and settlements should not be appeal. in issue on is not order applicable guardianships. The holdings: following make We power compromises to make or settlements provided: 1987, R.S.1895 (a) relating to the ward’s estate necessary executor or administrator an “Whenever proper guardian administration of a of the estate the interest it for may deem ship; provisions of Article any property purchase or represents to R.S.1895, authorizing settlements were not any any property, take or exchange inconsistent provisions with the of Title benefit for the property use or claims LI, any general least in sense. Title LI any debt payment due of the estate contained no statute pertaining compro compound bad or doubtful estate, or to mises, except perhaps in some minor detail. compro- estate, make toor debts due the We construe Article R.S.1895, as property relation mises or settlements prescribing only procedure by which dispute litigation, or claims in it shall power compromise is to be exercised. duty present application an be his The sales applicable. statutes are not court, county writing regular (b) guardian’s The thereof, facts; application representing term authority convey hearing ap- if the court interest in land to Wallace plication be satisfied that it will be the shall invoked the the estate court of grant interest of for the County, con same, effect shall to that be en- ferred to au- (d) proof con- do compromise settlement circumstances thorize show that the committed a cerning property ward. breach the ad waiting of trust until alleges application application verse claims on title to showing the ward’s facts authority compromise to make disputed on litigation and was land was in adjudicated based had been favor grounds. serious parties against the claims whose the reasons stated Skidmore For thing, Wallace acquiring. was For one the Company, 126 Valley Land Cumberland application alleges the grounds as one of 390, by 576, the Court Ky. 104 S.W. compromise that the ward claimed title the Kentucky, we think Appeals under Davis that Davis’ were heirs compromises and settle- power to make ap disputing the It ward’s title. does not 1987, R.S.1895 by Article conferred ments pear guardian that the awaited determina convey power to the included the course, tion of the this claim. Of whether payable in return for a consideration lands right finding Probate Court was inconsistency no money. There is real by the Davis claims the heirs of were seri power to power and the such a between justify compromise ous enough to is not a this, the Without the ward’s lands. sell suit, reviewable in terms of prove in- might well compromise power to Probate Court’s order do not exclude ineffective, Court as the complete and claim adverse of the Davis heirs v. Cumberland Appeals in Skidmore noted possible supporting grounds the order. supra; and there Company, Valley Land why guardian’s There no reason is any for review of provision adequate claim, deed should not be referred to this power. misuse necessary. if application the guardian’s construe We argue guardian’s Plaintiffs ex- Court as order of Probate deed to was not Wallace effective because compromise a pressing an intent to make it confirming by no order was made distinguished from and settlement ia county County. court This sale. argument seems to be an incident of their say that seem to (c) Plaintiffs conveyance to contention that Wallace compliance attacked was not a the order by governed a sale and was the statutes was because, they R.S.1895, regulating the ward’s land. sales of party a liti- say, was not Wallace stated, dispute involving the ward’s we have gation or the As actually governing raises the argument was the statute. It title. report transaction author- question, provide whether the does- for a not pro fact guardian, was in Probate Court court and it does not ized confirming approving or was one or compromise and settlement for an order vide a really be- form, guardian pursuant the transaction taken the action only in perversion permission sale, involving granting a him an order ing a appli- compromise settlement; compromise. The a and we power to make certainly pro the Probate authorized no -other statute which have found cation report compromise or confirmation in find that a vides for such was Court intended, We that the Pro it contains such -case. conclude allegations expected any that court to find that bate Court was Wal- take acquired regarding compromise rights such in the action or settle lace persons making who after an order disputing ment authorizing claims compromise; and hold- we that none title an the ward’s had become himself, necessary. thus, In Ulrich v. party Hoelfling, claimant was adverse dispute Tex.Civ.App. litigation. 56 S.W. and to the On 23 attack, Appeals gave a finding Civil collateral would effect to a supported compromise necessary only to be assumed authorizing it. The support order order order. an point made in was not dis- money paid 1899. The loss of evidently assumed that cussed but the court sale of the ward’s land. In both instances, no other required Probate Court bond was the guardian’s necessary. general bond. See Articles 2660 and R.S.1895, which became fact, nothing there was As matter of Articles 4162 and R.S.1911. report to Pro- for Moore’s These Articles were amended in except payment of bate Court Wallace’s by this amendment the amount of the price delivery him of deed and his guardian’s general bond was reduced and matters, Wallace; report of such and a required to furnish an actions, approval of such additional bond when he sold the ward’s of land. required even in the case of sale Chapter 151, land. See Laws, General Acts provided It to us that the seems 1913, 321; p. Vernon’s Ann.Civ.St. arts. equivalent R.S.1895 is 4141, 4201, performs of, the same function and that it as, in the case of the order of confirmation

a sale. court order of sufficiently specific regarding

County was authority, guardian’s guardian’s compliedwith order.

deed appeal; comments determine

These consequence appears Tom for as a RAGLAND et al. SHORT. conveyed to Wallace Moore’s title was No. 12293. plaintiffs no title under hold Appeals Court Civil of Texas. involved in of Error The Points Moore. San Antonio. overruled; above are the comments stated July 11, 1951. are immaterial and points of error be discussed. need not Rehearing Sept. 12, Denied trial court is affirm- judgment ed. Rehearing. Motion For

On rehearing has been motion for

Plaintiffs’ it is overruled.

considered and say our construc

Plaintiffs 1987, R.S.1895, as authoriz of Article

tion convey court to make probate deprives the ward of the

ance Wallace ad

protection requiring the statutes guardian when he bond from

ditional land, argument but this sells the ward’s into account the fact that take does concerning guardian’s bonds

the statutes materially changed since

have made to Wallace. Under

conveyance was probate when the in force court

the statutes conveyance to Wallace and made his deed to Wal when required lace, bond no additional land, sold e exactly pro had the same th ward paid money loss of the

tection as he Wallace would

Case Details

Case Name: Baldwin v. Davis Hill Oil Co.

Court Name: Court of Appeals of Texas

Date Published: Sep 13, 1951

Citation: 245 S.W.2d 353

Docket Number: 4700

Court Abbreviation: Tex. App.