31 Tex. 239 | Tex. | 1868
—Under orders of the probate court of Guadalupe county, the administrator upon the estate of Charles A. Smith, deceased, sold a tract of land belonging to the estate, which was purchased by John I. St. Clair, who executed his note to the administrator for the purchase-money, with A. hT. Erskine and A. W. Dibrell as his securities, taking also a mortgage upon the land sold, as prescribed by the statute. Before payment of the note the administration was closed, and this note, in the distribution of the •estate, came to the hands of P. D. Smith, the appellant, as guardian of the minor heirs of Charles A. Smith, deceased.
This note was the property of the minor heirs, a part of the proceeds of their inheritance, which was known, to and well understood by the appellee, A. W. Dibrell, one of the
In equity the dealing of guardians with the estates of their wards is watched over with a vigilant jealousy by the chancellor. And while- the chancellor will often uphold and ratify contracts and arrangements made by the guardian which are for the interest of his ward, although there
But as, from the view we take of the case, there is no vendor’s lien, but the right rests in equity upon the mortgage, which is not made a part of the record, though admitted to exist in the pleadings, it is remanded, with instructions to the court below to grant leave to the plaintiff to amend his petition, by introducing the mortgage and seeking its foreclosure and the subjection of the land to the payment of the residue of the purchase-money due upon the mortgage executed at the administrator’s sale.
Reversed and remanded;