Butler v. Stephens

HOBBY, Judge. —From the agreed statement of facts contained in the record it appears that J. R. Casady was the legally appointed guardian of the estate of J. T. A. Eldridge, a minor, from 1879 to 1883, and under the jurisdiction and authority of the Probate Court of Hill County. On the 9th of January, 1879, said guardian filed an application to sell land belonging to said minor, stating the reasons and necessity for such sale and describing the land. On March 7,1879, the court by an order directed the land to be sold at “ either private or public sale/'’ ¡Notice of the application for the sale was given by publication of citation in the Hill County Expositor (a newspaper) for four weeks. At successive terms of the Probate Court-following the application, up to and including the March Term, 1883, the applications of the guardian to extend the time for the sale were made. Such extension was granted up to and including the July Term, 1881. On March 16, 1883, Casady, the guardian, filed his report of the sale of the land to the appellee, which sale was by order of the court confirmed on the 22d of March, 1883, and title was ordered to be made to appellee, which was done, the appellee having paid the amount of his bid, 8500. This suit is an action by the appellant, R. H. C. Butler, the present guardian of said minor, to recover said land. Hpon the foregoing agreed statement of facts the court rendered judgment for the defendant for the land. The guardian appeals, and the first error complained of, which presents the question upon which the case turns, is that the court erred in holding the sale made by the guardian to appellee to be a valid sale and that it passed title to the land in controversy, because no citation had been issued and served as the law directs on the filing of an application for said sale prior to the entry of the order of sale. The proposition under this assignment is to the effect that the powers [602] of the guardian to sell the property of his ward and the court to order and confirm such sale are given by a mandatory and not a directory statute, and must be strictly complied with. Appellant’s statement from the record in support of the foregoing is that “the orders made by the court originally at March Term, 1879, for the sale, and at consecutive terms, with some intermissions, till the July Term, 1881, were for the guardian to sell at ‘public or private’ sale, and report at the next term of the .court. No order whatever was thereafter entered till March 22-, 1883, confirming report of sale. No application to extend the time or change terms of sale was made from September, 1880, to March 16,1883. No citation was issued except on filing first application, and it was not in compliance with law.” There is nothing in the foregoing statement which we think supports the assignment and proposition thereunder that the court erred in holding that the guardian’s deed to appellee passed the title to the land. Under the law in force when the application was made in January, 1879, for the sale of the land it was not required that such application should be sworn to. Sections 101 and 105 of the Act of 1876, General Laws 1876, page 184, authorized the guardian to make such application when it was necessary for the payment of debts or the maintenance and education of the minor. Section 104 of the same act required notice of such application to be given by publication for four weeks in a newspaper in the county. This was done in the present case. The court possessed full power to extend the time of sale. There is nothing in the statute prohibiting this, and cases might arise in which it would be the duty of the court to do so. No written application by the guardian was essential to obtain such extension where it appears from the order confirming the sale that it had been extended. In the present case there appears, however, to have been applications by the guardian under oath in many instances from the May Term, 1879, up to March, 1883, to postpone said sale. There was no necessity for any other notice of the application for the sale than that given as provided by section 104 of the act before mentioned. Article 2575 of the Revised Statutes, which requires such notice to be given by posting, was not in force when the application was made, and it was not the letter or the spirit of the law that additional notice should be given whenever the court might deem it best to extend the time for the sale. There is no similarity we think between the case of Dibbrell v. Smith, 31 Texas, 242, cited by appellant, and the present. In the former it was held that a guardian had no authority to release a mortgage which secured a note belonging to his ward, cancel the note, and take other security. The.general doctrine stated in that case that “the dealings of guardians [603] with the estates of their wards is watched with vigilant jealousy,” can not be questioned. In Calloway v. Nichols, 47 Texas, 331, also cited by appellant, it was held, in substance, that although the guardian sold land only by virtue of. the statute, and that unless the sale be made conformably thereto, still whether it was or was not in that case so sold in accordance with the statute depended upon the action of the court upon the report of sale and not upon evidence by which that action was shown. The confirmation by the court of the report of sale in the case before us is unquestioned. The case of Judson v. Sierra, 22 Texas, 369, contains numerous features which make it wholly unlike the present. In that case the purchaser at the sale refused to comply with his bid. The sale itself was not made by the guardian, but by an attorney in fact, as was the deed. Besides, the guardian, who was a woman, after making a power of attorney subsequently married, and was married when the deed was executed by the attorney in fact. Such were some of the complications characterizing that case, a general reference to which is sufficient to show its inapplicability to the present. The case of Brown v. Christie, 27 Texas, 77, to which appellant refers, announces, we believe, the correct rule. Discussing the question of the validity of such sales not made at a time required by law, it is said: “ The title of an estate or minor is not divested until there is judicial action by the Probate Court. The sale, if not made at the time required by law, was illegal, and should have been set aside by the Probate Court. If it be improperly confirmed its judgment might have been corrected by a direct proceeding for that purpose by any one having an interest in the matter. But it was not open to the collateral inquiry to which it was subjected in this case,” etc. Such we believe to be the rule in the present case. . Conceding all that can be fairly claimed under the facts in support of appellant’s position, nothing more is established than irregularities occurring in the exercise of an authority and jurisdiction with which the Probate Court of Hill County was clothed. And these were, if they existed, cured by the final act of confirmation in March, 1883. The confirmation of a sale made by the guardian under the orders of the Probate Court is conclusive where the record does not show affirmatively that the jurisdiction did not attach. Edwards v. Halbert,. 64 Texas, 667; Robertson v. Johnson, 57 Texas, 62. We think that the judgment should be affirmed. Affirmed. Adopted June 10, 1890.