Calloway v. Nichols

Citations

• 47 Tex. 327

Syllabus

<p>1. Guardian—Sale.—A sale was made by a guardian, of the land of his ward, in 1867; in 1873, pending a controversy involving its title, the purchaser moved the court to have entered, nunc pro tunc, on the minutes of the court, the judgment, which appeared, from' the entries on the docket of the county judge, and from parol evidence offered, to have been rendered, confirming the sale: Held, That there was no error in overruling the motion.</p> <p>2. Same—Evidence.—In 1867, land was regularly sold, for a fair price, by a guardian, in obedience to an order of the Probate Court; the report of sale wag duly returned, examined, and in fact confirmed by the court, which ordered the guardian to make a deed to tiie purchaser, which facts were evidenced by entries on the judge’s docket, and by parol testimony, and the purchase-money was paid. In a suit between the heirs and the purchaser, involving title to the land, the jury was instructed to find for the heirs, unless it was shown by the record that the sale by the guardian was confirmed by the court in an order entered of record: Held—</p> <p>1. Though tiie guardian sold the land by virtue of a mere statutory power, and the ward would not be bound by his action, unless the sale was made in conformity with the statute, whether it was so made or not, depends on the action of the court upon the report of the sale, and not upon the evidence by which that action is to be shown.</p> <p>2. If the destruction of the record evidence, or the omissions or misprision of tiie clerk is fatal to a title from an administrator or a guardian, no one would be safe in purchasing property sold by them. Such a rule would be injurious to the interests of estates, and would greatly diminish the price such property would bring when sold under an order of court.</p>