Barnes v. Hardeman , 15 Tex. 366 ( 1855 )

Wheeler, J.

It is objected to the judgment, that the Probate Court had not power, under the Act of 1846, to order the sale by a guardian of his wards’ property; and that its proceedings respecting the sale of the land in question, were coram non jndiee and void.

This position is not tenable. The Act of 1846 treats' in express terms of the powers and duties of executors, administrators and guardians. (Hart. Dig. Art. 1084, 1085, et seq) And in so far as its provisions are applicable to the office of guardian, they relate as well to guardians as to executors and administrators. This evidently appears by the several provisions of the Act itself. Guardians are mentioned in various of its provisions, and expressly in the 17th Section, (Hart. Dig. Art. 1099,) under which the proceeding in this case was had.

It is further objected that the order of sale and the proceedings thereon were void, because citation was not issued and served on the heirs as the Statute prescribes. But in this case there was no one on whom to serve citation. The heirs were themselves petitioning by their guardian; and, of course, there was no occasion to cite them to answer to their own petition. The present is unlike the case of Finch v. Edmonson. (9 Tex. R. 504.) That was an administrator’s sale, made without petition or citation to the heirs as the Statute requires. And it was held that these were necessary to give the Court jurisdiction in such a case. Bat in that case, there were heirs, who were not cited by their guardian or otherwise, and were not parties to the proceeding. Here the heirs themselves were parties. The petition in this case gave jurisdiction to the Probate Court to order the sale; and there is nothing in the objection that the order was made without the issuance of citation, there being no one to serve with a citation.

Nor is the objection tenable, that the Act of 1846, in so far as it relates to sales by guardians, is unconstitutional and void under the 24th Section of Art. 7 of the Constitution. The object of the Act is sufficiently indicated by its title. The term “ Probate Courts ” is sufficiently expressive and suggestive of the subjects embraced in the Act.

In respect to the remaining objection, that the Court erred in refusing to admit the testimony of the witness West, to prove that the order of the Probate Court was procured by the fraud of Jones, the purchaser at the sale, it is to be observed, that the petition contains no averment charging the defendants, the vendees of Jones, with notice of the fraud. It is not dedied that they are innocent purchasers, without notice of the alleged fraud of their vendor, the first purchaser, who is not made a party to the suit. That they, as subsequent bona fid& purchasers without notice, are not affected by the fraud of their vendor, has been expressly decided by this Court and is well settled. (Sydnor v. Roberts, 13 Tex. R. 598 ; 4 Watts, 424 ; Id. 85 ; 10 Johns. R. 186 ; 18 Johns. R. 516.) The Court therefore did not err in excluding evidence, by which it was proposed to affect the titles of the defendants, by proof of fraud in their vendor.

W e are of opinion that there is no error in the judgment, and it is affirmed.

Judgment affirmed.