Jessie Kendrick et al. v. Walter Wheeler and J. H. Bowman, 85 Tex. 247

FISHER, Judge,

Section B.—It is contended by appellants, that as the-notice of sale was not given for the length of time required by law, and as there was no sufficient legal reason nor necessity for the sale, the order of sale and sale thereunder are void, and should have been set aside. The-failure to give the notice the length of time required by law does not render the sale void. Weems v. Masterson, 80 Texas, 49; Heath v. Layne, 62 Texas, 689; Lyne v. Sanford, 82 Texas, 63. If the father is the guardian of the persons and estates of his minor-children, it is his duty to educate and support them out of his own means.

If, however, he is not able to do so, an allowance for such purpose will be made out of the estate of his wards. 9 Am. and Eng. Enc. of Law,

Article 2572, Sayles’ Civil Statutes, makes the education and support, of the ward a ground of sale of the ward’s property. The court finds, that Bowman did not know that the sale was made for any purpose different from that stated in the application for the order of sale. When the court acted upon the application and made the order of sale, Bowman was not required to look beyond the order of the court, and could act upon the assumption that the court granted the order of sale upon the existence of facts that would authorize it to do so. We do not think the order of sale void. Robertson v.

Johnson, 57 Texas, 63; Weems v. Masterson, 80 Texas, 53; Lyne v. Sanford, 82 Texas, 63. Appellants next contend, that in order to permit them to set aside the order of sale and sale of land, it was not necessary that theysliould refund or offer to refund the purchase money paid for said land'; because: First. The County Court only had jurisdiction to set aside the sale, and had no power to adjudicate and settle the equities of the parties in requiring the purchase money to be refunded. Second.

That as the facts show that no part of the purchase money was ever received by them, they are not required to refund it as a prerequisite to setting aside the sale. We think the court, where its jurisdiction is invoked to set aside its ■decrees and sale thereunder, has the power to set them aside, upon the applicant complying with certain terms that appear to the court to be equitable. This is a discretion lodged in the court, and its jurisdiction is broad enough, when its power is invoked, to give effect to this discretion.

In the case before us it appears that certain irregularities in the sale were committed, but it is shown that they did not affect the validity or fairness of the sale, as the court finds that the amount paid was full value for the land. Under such a state of facts the ward can not, as a matter of right, have a sale set aside, although the irregularities are shown; but whether it will be set aside depends upon the sound discretion of the court. If the sale appears to be fair to the minors, the court, can decline to disturb it, or can set it aside on such terms as are equitable. Herndon v.

Rice, 21 Texas, 458; Hartwell v. Jackson, 7 Texas, 578; Daniel v. Leitch, 13 Gratt., 214, 215; Myrick v. Jacks, 39 Ark., 295; Pardue v. Jones, 74 Texas, 299. We now come to the question, whether the appellants should have refunded, or offered to refund, the purchase money paid to their guardian for the land. The acts of the guardian in dealing with innocent purchasers, under lawful orders of the court, are binding upon the minors, in so far as they affect the rights of such purchasers. Dancy v. Strickling, 15 Texas, 557; Clayton v. McKinnon, 54 Texas, 211.

The purchaser at the guardian’s sale is not required to see to a proper application of the purchase money, or that the guardian executes his trust in a legal' way in dealing with the fund after it goes into his possession. Mulford v. Beveridge, 78 Ill., 456. From these principles, it necessarily follows, that the payment of the purchase money of the land to the guardian, under the circumstances and facts as shown in this case, is regarded in law as equivalent to a payment to appellants.

The guardian was their lawful agent, with power to receive the money, and if he has converted it, they have a remedy on his bond against him and his sureties. The very purpose of the law in appointing a guardian is to create a business agent of the minors, who can deal with their property under valid orders of the court. When third parties, under the sanction of an order of court, in good faith deal with the guardian, it would be inequitable to permit the wards to disturb rights thereby acquired, unless the consideration paid should be refunded. Bingham v. Barley, 55 Texas, 285; Parmele v.

McGinty, 52 Miss., 484; Hatches v. Briggs, 6 Ore., 46; Harrison v. Ilgner, 74 Texas, 87; Myrick v. Jacks, 39 Ark., 295; Herndon v. Rice, 21 Texas, 458; Pearson v. Cox, 71 Texas, 250; Railway v. Blakeney, 73 Texas, 181. We conclude the judgment should be affirmed, and so report. Affirmed. Adopted June 14, 1892.