| Tex. | Jul 1, 1860
This suit was instituted by Mary E. Henderson, joined by her husband, T. H. Henderson, and M. Isabella Hash, and Martha Hash, against the appellee, for the recovery of two negro slaves, which the petition alleged to be the property of the plaintiffs and to be wrongfully and unlawfully held by the defendant. The defendant in the court below answered that the plaintiffs were the children and wards of one Cooper B. Hash; that said Cooper B. Hash had sold the two negro slaves in controversy^ in obedience to an order of the County Court of •Smith county; that at said guardian’s sale one Drewry Smith became the purchaser of said negroes; that said Cooper B. Hash •afterwards purchased the negroes from Drewry Smith, and that the defendant afterwards purchased 'the negroes, for a valuable consideration, from Cooper B. Hash. At the Spring Term, 1859, of the District Court, which was the term when the cause was tried, the defendant amended his answer, and set forth that since the institution of the suit the former guardian of the plaintiffs, Cooper B. Hash, had made a final settlement of his guardianship in the County Court, and had been discharged from his guardianship ; and the decree of the County Court, "showing the settlement and the discharge of the guardian was attached to the amended answer. This decree of the County Court recited that the guardian had settled with two of the wards, and held their releases, and that he presented vouchers against the other ward amounting to a sum within two or three dollars of her distributive share of the estate, which balance of two or three dollars was deposited in court for the ward. Upon the coming in of this amended answer, the petition was amended, denying that Cooper Hash, the guardian, had settled with and satisfied the plaintiff, M. J. Hash.
It will be observed that the suit was instituted by the plaintiffs as if they were all persons of full age, and not under guardian,ship; for the original petition says nothing about the guardianship.' It will also be observed that no question is made, either in the original or amended answer, as to the capacity of the plaintiffs to-maintain the action.
On the trial it was made to appear, that the pretended sale of the negroes by Cooper Nash as guardian, took place on the first Tuesday of April, 1857; that the sale by Cooper Nash to the defendant, Milhurn, was made on the 24th day of November, 1857, and that the account or report of the sale to Drewry Smith was made to the court by the guardian, at the June Term, A. D. 1858, and then confirmed by the County Court. It was also shown that Cooper Nash, the guardian, never made any conveyance of the negroes to Drewry Smith; that he refused to do so, saying that the negroes did not sell for enough; that he, requested Drewry Smith to keep the negroes for the use of them, until he came for them; that Drewry Smith kept them about six weeks, when Cooper Nash took them, away, and that Drewry Smith never paid Nash any thing for them. The orders of the County Court, appointing Cooper Nash guardian of the plaintifis, authorizing the guardian to sell the negroes upon his written application, confirming the sale to Drewry Smith upon the report of it made by the
Upon this case, the presiding judge instructed the jury briefly, as follows: “that the proceedings of the Probate Court are not void and can not be inquired into in this suit. The plaintiff’s remedy was in the Probate Court, before the guardian made his final settlement, or by a revision and correction of the settlement, and the orders and decrees of that court, by a proceeding in this court for that purpose.” In accordance with the instruction of the court, the jury found for the defendant.
We are of opinion that the judge did not err in the instruction to the jury, and that thére is no error in the judgment for which it ought to be reversed.
The original petition showed a good cause of action in the plaintiffs, because it merely stated their right of property in the negroes and their right to recover them from the defendant, who held the unlawful possession of them. But the case as developed by the answers and exhibits, showed that the plaintiffs were not entitled to recover upon the allegations of their original petition. It was shown to the court that the plaintiffs were under guardianship when the original petition was filed; or at least that their former guardian had not at that time closed his guardianship by settlement in the County Court. The order of the County Court authorizing the guardian to sell the negroes, the report of the sale, and the confirmation of it by the court, were also shown; and then it was shown that the guardian had settled his account with the court, had paid over to his wards their distributive shares of the estate which had been under his care, and had been finally discharged from his trust. The district judge was right in saying that he could not treat these orders and decrees of the County Court as void, upon the case presented by the plaintiffs. The orders and
We do not mean to be understood as saying that the defendant Milburn did. not purchase under such circumstances as affected him with notice of all the proceedings of the guardian in the County Court, for he was told before he purchased the negroes from Nash that they had been sold by order of the County Court. If he had gone to the records of the court as it was his duty to do, he would have found that the sale by the guardian had never been reported to the court, and consequently had not been confirmed. The plaintiffs ought to have placed themselves in an attitude before the District Court to have shown the invalidity of the acts of the guardian, and to have corrected or set aside his settlement, and for these purposes the guardian ought to have been called into the suit, so that the equities between all the parties could have been ascer
Judgment affirmed.