Pierson v. Smith (292 S.W.2d 689, 1956)

COLLINGS, Justice.

• This is a statutory action in trespass to try title brought by Donald G. Pierson, Betty Pierson Culver, joined by her .husband, and Doris .Pierson Broadwell, joined by. her husband. The- suit was brought against Wayman Smith and wife, Lee Smith and wife and numerous other defendants praying judgment for title and possession of Section 126, Block D of the H & T C Ry. irregularity is alleged or shown in the application to sell Section 126 or in the or■der of sale. Pursuant to the order, of sale and in compliance with the terms thereof the guardian proceeded to sell the land to Emmett Moorhead for a cash consideration of $100. This sale was reported to the probate court by the guardian and the court then entered an order confirming the sale and authorizing the guardian to ex•ecute a deed to Moorhead. The guardian •did execute the deed on March 21, 1935, There is nothing on the face of the record to show any illegal or unlawful action in connection with the sale.

In the next place the facts upon which appellants base their contention that there was a void sale have been found against them. This precludes any recovery by appellants regardless of whether the facts which they rely upon, if true, would show a void or merely a voidable transaction. Appellants’ contention is, in effect, that the purported sale by their guardian, Mrs. Hazel Pierson Murphy, to Emmett Moorhead was in fact a sale to her husband Frank Murphy; that by such purchase the property was acquired as the community property of Murphy and wife and therefore, the guardian acquired an interest in the land, in violation of the statute. íhis is the factual basis of appellants’ contention that the sale by the guardian was in violation of the statute and that the sale was void. This fact was found against them in the trial court. The court found that the guardian’s sale of Section 126 was made to Emmett Moorhead in good faith, and that the sale was not to Mrs. Hazel Pierson Murphy; that she was not the purchaser of the land either directly or indirectly ; that the guardian’s sale was not a sale to Frank Murphy but to Emmett Moorhead and that Frank Murphy purchased the land from Moorhead in good faith. These findings of the trial court, if allowed to stand, preclude a recovery by appellants. .The findings must-be accepted as true unless the evidence is conclusive to the contrary. Appellants . contend that the evidence to the effect that Moorhead, only four days after he purchased Section 126 from the guardian, sold the land to her husband, Frank Murphy, does conclusively establish the facts to be contrary to the findings of the trial court. We cannot agree with this contention. Such evidence, at most, raised only an issue of fact 3-S to whether or not the deed from the guardian to Moorhead was a subterfuge by which the guardian made a sale of the property to her husband.

Even if it should be held that the guardian by the sale of Section 126 to Moorhead and by his subsequent sale of the land to her husband was in effect an indirect purchase of the land by the guardian or by her husband in violation of the statute, still the transaction would not be absolutely void but only voidable subject to proof presented at a hearing after complaint and notice in accordance with the terms of the statute. Davis v. Howe, Tex.Com.App., 213 S.W. 609 and Rutherford v. Carr, 99 Tex. 101, 87 S.W. 815.

The right to have such a sale by a guardian or administrator declared void and set aside may be barred by the statutes of limitation. Pearson v. Burditt, 26 Tex. 157. In the instant case the Smith defendants entered into possession of Section 126 upon receipt of the deed from Frank Murphy, joined by his wife, and the Citizens National Bank on March 31, 1936. The Smiths and those holding under them have at all times since continuously and without interruption held peaceable and adverse possession of Section 126 under title or color of title from the sovereignty of the soil and have claimed said land under said duly registered deed in writing which fixed the boundaries of the land and their claim thereto, cultivating, using and enjoying the land and paying all taxes thereon before they became delinquent.

All of appellants had been of age or free of the disabilities of minority for more than' three years prior to the time this suit was- filed on March 13, 1951. Donald G. Pierson was born October 11, 1925. Hiié disabilities 1 of minority were removed March 28, 1946. Betty Pierson Culver was born December 21, 1927. She married February 16, 1946. Doris Pier-son Broadwell married sometime during the year of 1944, at which time she was about twenty years of age. If appellants had any cause-of action entitling them to recover title to said land, their right was barred by Article 5507, Vernon’s' Annotated Texas Civil Statutes, commonly referred to as' the three year statute of limitation.

This disposition of the matters .discussed requires a judgment adverse to appellants and renders immaterial other .points presented by them. For the reasons stated the judgment of the trial court is affirmed.