Opinion
No. 3989.
May 21, 1931. Rehearing Denied June 4, 1931.
Appeal from District Court, Van Zandt County; Joel R. Bond, Judge.
Suit by A. B. Clark and others against the Pure Oil Company and R. Clark, as guardian, respectively, of Henry Clark and others, minors, and guardian of Mrs. Isabel Clark, a lunatic, in which suit Henry Clark, by his next friend and guardian ad litem, James M. Shields, filed cross-action. From the decree, defendant Pure Oil Company appeals.
Reversed and rendered.
See, also, 35 S.W.2d 838; 37 S.W.2d 1083, 1088.
The suit was instituted on December 21, 1929, by A. B. Clark, A. M. Sutton, and G. A. De Montrond against the Pure Oil Company and R. Clark, as guardian, respectively, of Mrs. Isabel Clark, a lunatic, Rube Clark, Henry Clark, and Cone Johnson Clark, minors. The suit was to have decree of partition between the alleged joint owners of certain described lands. Mrs. Isabel Clark was the mother and was the alleged owner of a one-half undivided interest in the lands described, and the other Clarks mentioned were her children and each owned a one-eighth undivided interest in the land. The Pure Oil Company had a lease upon a seven-eighth undivided interest in the land to bore wells for oil, gas, and other minerals with the right of a percentage of the oil, gas, and other minerals discovered.
On February 18, 1930, Henry Clark, "for himself, and appearing herein by and through his nest friend and guardian ad litem, James M. Shields," filed an answer to the suit, and, by way of cross-action, sought remedy against the lease held by the Pure Oil Company upon the grounds that the lease cast a cloud upon the title to land and was invalid, and the time for termination as fixed by statute had expired. The cross-action set up that the interest of R. Clark, guardian, was antagonistic to that of Henry Clark.
On February 24, 1930, the plaintiffs in the suit applied for and had entered of record an order of dismissal of their suit for partition. On May 24, 1930, R. Clark, guardian, entered his appearance, but did not plead any special defense.
On May 1, 1930, by leave of the court, the cross-complaint filed in behalf of Henry Clark against the Pure Oil Company was amended and set up, as pertinent to state, that Henry Clark, "is not now a minor and was not a minor on February 18, 1930, when he filed his original answer and cross action. * * * That the Pure Oil Company in asserting some right or claim upon the undivided interest in the lands and premises belonging to him which constitutes a cloud on his title. Said claim of the Pure Oil Company is based on a certain instrument of writing of date November 24, 1928, being an oil and gas lease, recorded in Vol. 13, p. 571 of the Oil and Gas Lease Records of Van Zandt County, Texas, reference to which record is here made for all purposes of identity and description. Said instrument of lease was executed by R. Clark, guardian of the person and estate, to R. E. Blackwell, and which lease was assigned and transferred by R. E. Blackwell to the Pure Oil Company by instrument in writing of date December 19, 1928, and recorded in Vol. 182, p. 439, of Deed Records of Van Zandt County. * * * That at the time of the execution of the oil and gas lease this defendant, Henry Clark, was a minor under twenty-one years of age. That he is now more than twenty-one years of age. That under the law of this State, he, the said R. Clark, guardian, had no authority to bind this defendant's premises in the execution of an oil and gas lease for a longer period of time than was required for this defendant to become twenty-one years of age. That no attempt has been made to discover oil or gas," etc. The prayer was for "judgment against the defendant, the Pure Oil Company, cancelling and holding for naught the oil and gas lease, and removing the cloud from this defendant's title."
The Pure Oil Company, besides general denial, pleaded that it was an innocent purchaser of the lease for value without notice.
The controversy between Henry Clark and the Pure Oil Company was in the nature of an ordinary suit, and was tried on their pleadings before the court without a jury. The court entered judgment in favor of Henry Clark "that the lease upon the property described in plaintiff's original petition be cancelled, set aside and declared of no force or effect. * * * That the cloud cast upon the title of the property of Henry Clark, as described in the plaintiff's petition, because of the lease held by the Pure Oil Company, be removed therefrom." The Pure Oil Company has appealed from the decree entered.
It appears in the evidence that the father and mother of Henry Clark owned, as community property, at the death of the father, occurring in August, 1916, seventy-six and one-half acres of land in the John Walling survey and 102 acres in the P. Mason survey in Van Zandt county. Henry Clark was entitled to a one-fourth of his father's one-half interest in the lands amounting to a one-eighth of the whole. These are the lands involved in the present controversy. Henry Clark was thirteen years old when his father died. He became twenty-one years of age on February 14, 1930.
It was proved that on September 18, 1928, in a lunacy proceeding in Van Zandt county, Henry Clark was found by the jury to be a person of "unsound mind," although "not dangerous by reason of his insanity," and "not a proper subject for treatment in a hospital for the insane." On the above-stated verdict of the jury he was adjudged by the court "a person of unsound mind." On September 29, 1928, R. Clark, an uncle, made application in the probate court of Van Zandt county to be appointed "guardian of the person and estate of Henry Clark," as "minor," and as "a person of unsound mind," setting up in the application, in substance, that Henry Clark was "a boy about nineteen years of age" and was "also a person of unsound mind" under the lunacy proceedings and order therein, and the real estate he was possessed of, and that his father was dead, and that his mother was a lunatic confined in the asylum. The probate court appointed R. Clark temporary guardian, and then on November 5, 1928, at a regular term made the order permanent. By the order R. Clark was expressly made "guardian of the person and estate of Henry Clark" in each of the two disabilities of "minor" and "a person of unsound mind." The appellee's brief has reference also to a prior application and order as made "on May 14, 1918, in cause No. 1684," but such is not made to appear in the statement of facts on this appeal.
On November 6, 1928, and in due form, R. Clark filed a sworn application for authority of the probate court to make a lease of the lands of Henry Clark for the purpose of discovery of gas, oil, and other minerals. The application was made by the guardian in the two capacities of "guardian of the person and estate of Henry Clark, a minor, and a person of unsound mind." On November 24, 1928, the court heard the application and granted it by an order reading in the terms of the guardian's application as material to state, viz.: "It is ordered that R. Clark, as such Guardian as aforesaid, do make, execute and deliver to R. E. Blackwell, an oil, gas and mining lease upon the undivided one-eighth (1/8) interest of said Henry Clark, a minor, and a person of unsound mind, in and to the land above described, the same being all the interest said ward owns in and to said above described land, for a cash consideration of $54.37, said lease to be for a term of five (5) years, (it appearing to the Court that said ward is a minor and also a person of unsound mind and has been legally adjudged as such,) and as long thereafter as oil, gas or other mineral or minerals is produced from said land under said lease, by said lessee or his heirs or assigns; to pay to said Guardian for the estate of said ward the sum of $22.37 as annual rental in case no drilling for operation of oil or gas is commenced on said land," etc.
On November 24, 1918, R. Clark, in the capacities as "guardian of the estate of Henry Clark, a minor, and a person of unsound mind," duly executed the lease to R. E. Blackwell, reciting that "this lease shall remain in full force and effect for a term of five years from this date and as long thereafter as oil, gas, casinghead gas, casinghead gasoline, sulphur, or other minerals or any of them, is produced from said land by the lessee." R. E. Blackwell then, by instrument in writing, duly transferred and assigned the lease to the Pure Oil Company, who at the date of the trial was the owner thereof. There was evidence showing that no wells had been bored, and that there was no oil, gas, or any other mineral being produced on the land at or prior to the date of the trial.
There was no evidence offered that the disability of mental unsoundness had disappeared, nor that the judicial adjudication thereof had been vacated and the further guardianship terminated.
Vinson, Elkins, Sweeton Weems, of Houston, and Wynne Wynne, of Wills Point, for appellant.
McEntire, Shields Elam, of Canton, Beall Beall, of Sweetwater, and Edgar J. Elam, of Dallas, for appellees.
The points chiefly for consideration are (1) as to the validity of the guardianship proceedings, and (2) as to the termination of the period of the lease as it was fixed in the order of the probate court and the written lease. In considering the validity of the guardianship proceedings the essential facts in view are that at the time of the appointment of the guardian of the person and estate of Henry Clark he was both a person of unsound mind, by judicial inquisition and adjudication, and a person over nineteen but under twenty-one years of age. And it will be observed that the order of the probate court, which is here attacked, appointing the guardian, expressly made the appointment of the guardian to be as "guardian of the person and estate" in each of the different disabilities of "a minor" and of "a person of unsound mind."
Where minority and mental unsoundness coexist during minority, has the probate court the jurisdiction to appoint a guardian of the person and estate for each disability and to continue until each disability disappears, the appointee in each instance being the same identical person? By the express provision of article 4124, R.S., only "one guardian can be appointed of the person or estate." The inhibition is evidently directed entirely against having two or more persons appointed and acting at the same time as guardians of the estate or of the person. There cannot be two separate guardians of the person and two separate guardians of the estate of "a minor" during minority. A single appointment of the guardian in each instance must be made, and the authority to do otherwise would not exist and would be denied. The case of St. Paul Sanatarium v. Crim, 38 Tex. Civ. App. 1, 84 S.W. 1114, is not authority upon the point being now considered. That case means and goes to the extent of holding only that, in virtue of the above statutory provision, where a guardian has already been appointed upon the ground of disability of "minority," and such guardian has not resigned or his guardianship revoked, the probate court has not jurisdiction to appoint another and separate person as guardian of the "minor." And the special facts are not suitable to the application of the above statute. Here there are not two different persons applying for and appointed as guardian upon the ground of disability of minority nor upon the ground of disability of mental unsoundness. There is a single appointment, and the appointee in each instance is the same identical person. It is thought that the conclusion that the same person can be appointed guardian for each disability for which the law allows a guardianship is in line with and not opposed to the spirit and purpose of the statutory provision being considered. Neither does any article of the statutes, as they were originally passed (General Laws, vol. 8, p. 1011) and as presently existing, expressly or impliedly provide that only a person who has reached his majority, and is not a minor, can be put under a general guardianship for lunacy or unsound mind. As has been held, there is no legal objection to the putting under general guardianship of a minor, where minority and mental unsoundness coexist during minority. Francklyn v. Sprague, 121 U.S. 215, 7 S.Ct. 951, 30 L.Ed. 936; In re McMillan, 126 App.Div. 155, 110 N.Y.S. 622. The combining of the field of "minority" and the existing field of "mental unsoundness" and the appointment of the same person as guardian of the person and estate of the ward would not in any wise present a situation legally conflicting and inconsistent, for the two fields can easily stand together in harmony and not conflicting in legal authority to the guardian. The authority of the guardian would be equal and the same in the one instance as in the other. When the two fields are combined together in one proceedings, the guardian exercises the same and no greater functions, and has the same and no different legal control and authority of the ward's property during the period of minority. Ordinarily a minor under the disability of mental unsoundness is not upon that ground alone placed under guardianship, and such was not the case in the present proceedings.
Under the statute the guardianship of a minor ends when he becomes twenty-one years old, and the guardianship of a person of unsound mind ends when intelligence supervenes. Article 4128, R.S. But that difference does not present a legal objection nor complication in the way of uniting and combining the proceedings, as was done in the present case. If the mental disability were to disappear before or by the time of the expiration of the minority, the term of guardianship in entirety would be legally ended at the expiration of the minority. Minority would not be the only reason for the continuation of the guardianship in case the mental disability were to remain after minority has passed, for then a valid legal reason for the continued retention of custody and control of the estate and the continuation of the guardianship of the ward would remain. A necessity of the control through guardianship would continue to exist until the mental disability disappeared. Therefore, if it would be competent, as is shown to be, to start the proceedings for guardianship upon the ground of mental disability on the very day the minor arrived at his majority, then setting the proceedings in motion earlier and at the time of the proceedings begun for "minority" would be justified either upon the ground of avoidance, circuity of action or upon the ground of expediency. The jurisdiction of the court would not be in any wise lacking because the proceedings were set in motion at the earlier time. It is thought that the order of the probate court appointing the guardian in the present case cannot be considered as legally null and void because including both the field of "minority" and the field of "mental unsoundness," both grounds coexisting at the time. And neither can the proceedings be considered void upon the ground that the appointment of the guardian was made first temporary then permanent. Article 4272, providing for the appointment of the guardian "in the same manner as in the case of a minor," operates to make applicable all of the provisions relating to both the temporary and the permanent appointment of the guardian.
The next question is that of whether or not the period of the lease was terminated. The lease was for the "term of five years, and as long thereafter as oil, gas or other minerals is produced from said lands under said lease by said Lessee, his heirs or assigns." The statute expressly provides that "no such lease shall extend beyond the time that the ward shall become twenty-one years of age, unless at that time the lessee shall have discovered such minerals as are specified in the lease, or any of such minerals, upon the premises described in such lease" art. 4192, Subdivision 5, Vernon's Ann.Civ.St. Henry Clark became twenty-one years old on February 14, 1930. When he reached his majority, neither oil, gas, nor any other mineral had been discovered on the leased land. The statute having expressly fixed the expiration of the lease at the passing of the minority of the ward, the restriction would limit the power of the probate court and the authority of the guardian to lease for a term beyond the period so prescribed. The lease would be valid for the period of time authorized by the statute and void only for the excess term above the power to lease. But the statutory period of time applicable to the expiration of guardianship for "minority" would not control and have application to the guardianship proceedings for "mental unsoundness". As seen from the terms of the statute above referred to, the guardianship for the disability of mental unsoundness does not terminate merely upon such minor's attaining his majority. The five-year period of lease would prevail unless Henry Clark was restored to mental soundness before the five years passed. And there is no proof in this case that the minor was restored to mental soundness. Therefore, it cannot be held that the term of the lease, in view of the proof, has terminated.
The judgment is accordingly reversed, and judgment is here rendered in favor of the appellant, the Pure Oil Company, that the appellee Henry Clark, appearing herein by and through his next friend, James M. Shields, recover nothing in his suit. James M. Shields, as next friend of Henry Clark, will pay all costs of the trial court and of this appeal.