Mast v. Orum (132 S.W.2d 105, 1939)

GERMAN, Commissioner.

This suit was instituted in the District Court of Nacogdoches County May 25, 1936, by H. R. Mast as plaintiff, and he will be so designated here. It was against Ocie Orum, Jr., who will be referred to as defendant. The suit was in the nature of trespass to try title for the recovery of title and possession of a sixth-tenth interest in 160 acres of land.

It is admitted that Jessie Runnells is common source of title, and plaintiff is entitled to recover unless a guardian’s deed under which defendant claims is upheld. Judgment in the district court was against plaintiff and this judgment was affirmed by the Court of Civil Appeals. 111 S.W.2d 1129.

The facts with reference to the guardian’s deed are as follows:

On August 11, 1919, B. S. Shirley filed application-in the probate court of Nacog-doches County to be appointed guardian of the estate of Jessie Runnells. Among other things the petition contained the following recitals:

“Comes now your petitioner B. S. Shirley • and represents to the Court that he is a bona fide resident of Nacogdoches County, Texas; that Jessie Runnells is an inmate of the Lunatic Asylum at Terrell, Texas, and has. been -such inmate for a period of something like seven years, the exact date that he was so incarcerated can not be given by your petitioner, because after careful investigation no record can be found in the Probate records of the time of trial and sending the said Jessie Runnells to the asylum for the insane, although such was done, which will be shown to your Honor by competent proof; that a part of those who would become heirs of the’said Jessie Runnells at his death have requested your petitioner to act as Guardian of the estate of said Jessie. Runnells and he has agreed to do so, provided it meets with the approbation of the Court for him to so act. Your petitioner states that he is not related to the said Jessie Runnells, nor has he any interest in the estate of the said Jessie Runnells, and that it is only at the request of those who are interested in said estate that he makes this petition; he says also that he is not disqualified from so acting as the Guardian of the estate of said Jessie Runnells, who is of unsound mind, and as such now confined by due process of law in the hospital for the insane at Terrell,'Texas.”

The application then proceeds to set out that Jessie Runnells was entitled to an estate, real and personal, situated in Nacog-doches County, and a necessity existed for the appointment of a guardian. It was then alleged that said property was being misused and misappropriated, being adversely held by certain persons, and was being subjected to waste; that the rents and revenues therefrom were being appropriated by others, and that certain persons were cutting and disposing of the merchantable timber situated upon the land. Among other things the application contained the following prayer:

“Premises considered your petitioner prays for temporary letters of guardianship of the estate of said Jessie Runnells, a lunatic confined as before stated, that citations issue as the law directs in such matters and that at the next regular term of the County Court of Nacogdoches County, Texas, such guardianship become permanent, or until such time as the said Jessie Runnells may be discharged from the hospital for the insane, and is incapacitated to attend to his own affairs in matters of business.”

In response to said application, and on the said 11th day of August, 1919, the county judge entered an order appointing B. S. Shirley guardian, which, in part, was as follows:

“On this 11th day of August, 1919, this cause coming on to be heard on the petition of B. S. Shirley to be appointed Guardian Temporary of the estate of Jessie Runnells lunatic, and it appearing to the Court that it is necessary for the protection and safeguarding of the estate of said Jessie Runnells, and it further appearing that B. S. Shirley is a proper .person to be appointed temporary guardian of said estate and is not disqualified in so acting, it is therefore ordered, adjudged and decreed b.y the Court that B. S. Shirley .be and he is hereby appointed temporary guardian of the estate of Jessie Runnells, lunatic. It is further ordered that citation issue as the law directs in such matters and if no contest is filed this temporary guardianship will be made permanent at the next regular term of this Court, as prayed for in the original petition of B.