Clayton v. McKinnon, 54 Tex. 206

Clayton v. McKinnon

54 Tex. 206 | Tex. | 1881

Gould, Associate Justice.

1. As this case was tried by the court without a jury, and as we are of opinion that there was competent evidence sufficient to authorize the judgment rendered, it is not necessary to examine the numerous assignments of error to the action of the court in admitting evidence objected to; for in such a case the erroneous admission of evidence would not require a re*212versal of the judgment. Melton v. Cobb, 21 Tex., 539; Beaty v. Whitaker, 23 Tex., 526;.Smith v. Hughes, 23 Tex., 218.

2. We are of opinion that the appellant, by his guardian, John W. Clayton, was a party to the proceedings of the county court of Fayette county, had in 1868, on the petition of Authora McKinnon, partitioning a part of the estate of Charlotte Clayton; and that the partition then made was valid as to the plaintiff. The petition prayed for citation to “John W. Clayton, of Liberty, Texas, as guardian of H. F. Clayton;” the decree ordering partition recites that “ the minor Henry F. Clayton appeared by his guardian,” and the decree confirming the partition made by the commissioners directs that “ John W. Clayton, guardian of Henry F. Clayton, . . . have and recover for the use and benefit of said Henry F. Clayton,” etc. The court making these decrees must be presumed to have had satisfactory evidence that John W. Clayton was such guardian; and from the recitals it must further be presumed that said guardian appeared either in person or by attorney.

3. Henry B. Clayton having used means of his son and ward, Henry F., in buying in bis own name the 122 acres of land, he, and those holding under him with notice of that fact, held the legal title subject to the equitable right of Henry F., to so much of the land as had been paid for with his means. But there was evidence sufficient to support a finding of the court that John W. Clayton, the subsequent guardian of Henry F., instead of enforcing this equitable right to. a part of the land, prosecuted a monied demand for the means thus used against the estate of Henry B. Clayton; that to satisfy this and other monied claims established against said estate as liens on the land, said 122 acres were regularly sold under order of court by the administrator; that part of the proceeds was paid over by said administrator to said guardian, and *213that the land has by repeated sales passed into the hands of purchasers, who .have made large improvements. There is no evidence that the guardian in taking this course acted in bad faith, or even acted improvidently, nor that these purchasers had any notice that the equitable claim of the plaintiff would or could be urged, after this action of his guardian. In this state of the facts, we are of opinion that the plaintiff was bound by the election of his guardian, and that he had no such right to the land as entitled him to disturb the defendants, who were in possession holding the legal title. Dancy v. Stricklinge, 15 Tex., 563; Hartwell v. Jackson, 7 Tex., 582.

Affirmed.

[Opinion delivered January 11, 1881.]