Berry v. Young , 15 Tex. 369 ( 1855 )

Wheeler, J.

The objections to the judgment bring in question the validity of the sale made by order of the Probate Court; and the conformity of the .verdict to the evidence, on the question of fraud.

It is objected that the Court had no authority to order a sale of the property by the guardian, to pay a debt of his deceased ward, without administration on his estate. The present plaintiff, however, surviving, became sole heir of the estate. It was greatly more than sufficient to satisfy the debt. The estate descended to him, incumbered with the debt. It was a charge upon the estate; and may be said to have become relatively the debt of the plaintiff. It was a charge upon the estate in the hands of his guardian, which estate he inherited, and now claims. Under these circumstances, we do not think it was necessary for the guardian to run the estate to the expense of an administration, to obtain authority to pay the debt, and discharge from liability the property of his ward. Nor do we think the latter can complain that his estate was not subjected to that needless expense.

There may be some doubt as to the conformity of the sale to the order of the Probate Court. The most obvious construction of the language of the order would, perhaps, be, that the survey of the land to be sold, should commence at the river. It, however, is susceptible of a different construction • and it is evident the Probate Court construed it differently, when it confirmed the sale, the report of the sale, showing that the land was about a mile and a half from the river. It is most likely that the land sold, was that to which the order was intended to apply ; and that the sale was in fact, in accordance with the intention of the Court, and the party obtaining the order. As the order was susceptible of that construction ; as it was so understood and acted on, and the sale was confirmed by the Probate Court; and as no injury resulted to the estate of the plaintiff by reason of the mistake or misconstruction of the terms of the order, (if there was any mistake or misconstruction of its true import,) the land sold being of less value than that which would have been sold, if the order had been construed as the plaintiff now insists it should be, we cannot say that the Court erred in not holding the sale void, as not having been made in conformity to the order of the Probate Court. Indeed the Court below appears to have agreed with the Probate Court in its construction of the order; and, considered with the evidence respecting the locality of the land, the situation of the farm of Mr. Side, referred to in the order, and the form in which the land was to be surveyed, it is not entirely clear that it was not the correct construction.

The question of fraud in the sale was fairly left to the decision of the jury, by the charge of the Court. They were told expressly, that if they found from the evidence, that the defendant had been guilty of fraud and collusion with the guardian, Season, in procuring the sale and conveyance of the land, they would find for the plaintiff. The finding of the jury negatives the fraud, as to the defendant. And we cannot say that it is so contrary to the evidence, as to warrant this Court in reversing the judgment of the Court below refusing to set it aside on that ground. For aught that appears, the guardian may have accounted to the plaintiff for the excess paid above that bid by the defendant; and the latter may have paid that excess, in the confidence that he would so account. If the guardian had been made a party, and had not shown that he accounted, or if it had been shown that he had not, in fact, accounted to the plaintiff for the purchase money received, it certainly would have required convincing proof to exculpate the defendant, thus dealing with the guardian in respect to the property of his ward. The transaction bears certainly a very suspicious appearance. But the failure to produce other evidence, which, if it were really fraudulent, it must have been easy to procure, left the jury at liberty to draw such inferences, and adopt such conclusion, as were most favorable to fairness and innocency on the part of the defendant. If the guardian has not accounted, he certainly is liable to account; and if the plaintiff has sustained any' injury by reason of his wrongful or fraudulent acts, he, of course, is liable to make reparation. But however suspicious the conduct of the defendant may appear, the proof of his participancy in a fraud practiced upon the plaintiff, is not of so convincing and conclusive a character as to warrant a reversal of the judgment on that ground. And upon the whole, we are of opinion that there is no error in the judgment, and it is affirmed.

Judgment affirmed.