Simpson v. Mitchell

Moore, Associate Justice. There can be no pretense that notice of the application for the order to the guardian to sell the real property of his wards, for the payment of debts, was given in the manner prescribed by the statute in force when the order was made, from which this appeal is prosecuted. The statute, in plain" and unequivocal lan [577] guage, declares that no order for the sale of real property, • for the payment of debts, shall' be made unless notice of the application therefor shall have been given by citation, duly posted, to all persons interested in the administration and estate to show cause why such sale should not bé ordered. (Paschal’s Dig., art. 5703a.) As no notice of the application was posted, as required by the statute, the order of the court was unwarranted, and must be reversed. For, indeed, was service of notice of the application properly perfected under the previous law, which the court, well as the parties, evidently supposed was still in force when the proceedings here in question were had. „ The order of sale was unquestionably made before the expiration of the time for wMch the notice of the application was required to be published. (Hill v. Faison, 27 Tex., 428.) The appearance of the guardian, after the order, for the purpose of objecting to and moving to set it aside,' did "not ciire the defect in the service of notice. The statute requires the posting of the notice, not only for the information of the guardian, but also, that “ all persons interested in the administration and estate” may be informed of the application; and certainly the implied waiver of notice, by the appearance of the guardian to contest the application, would not have authorized the court to act upon the application, without notice to others interested in the matter. Much less can it be said that his appearance, after the court has acted, for the pui’pose of moving to set aside and revoke such unauthorized order, can be held to have this effect. The order of payment, upon which the application for the order of sale is founded, seems also to have been' erroneous, as no notice of the application for this order appears to have been given to the guardian. "When there are debts due by an estate, it would ordinarily seem to be the duty of the guardian to take the proper action to enable him to discharge them without subjecting the estate to the costs of coercive proceedings for this purpose by the- ■ [578] - creditors. But if he fails to do so, it is usually better for the creditor to require the guardian to make an exhibit of the condition of the estate. On such exhibit being made, if it appear that there is a necessity for the sale of property, it should be made by order of the court. And should the guardian fail to comply with the order, he should be removed, if desired, by the creditor. We do not intend, by what is here said, to intimate that the creditor is restricted to this course of proceeding, but merely as a suggestion of what appears to us to be the most practicable and efficacious means given by the statute, of coercing a dilatory guardian or administrator to the prompt discharge of his duty. As' any proceeding which may he hereafter had in this matter must come before a different tribunal, and will he regulated by a different law from that in force when the order was made from which this appeal is prosecuted, it is deemed unnecessary to comment at present upon other questions which have been discussed by counsel. Reversed and remanded.