J. E. and P. W. Bouldin v. Will. Miller, Jr., 87 Tex. 359

DERMAR, Associate Justice. Plaintiffs in error, James and Powhatan Bouldin, sued defendant Miller in trespass to try title to recover the land in controversy, and defendant pleaded not guilty. Thereupon plaintiffs filed a paper alleging no facts, but offering to refund any sum the court might find chargeable to them on account of any money received by their alleged guardian, who sold the land. This paper presents no issue, and the case will be considered as one of ordinary trespass to try title, with plea of not guilty. James E.

Bouldin, the common source of title, in 1876, in due form of law executed a deed which, divested of unnecessary verbiage, reads as follows: “I, James E.

Bouldin, in consideration of natural love and affection I have for my grandchildren, sons of David W. and Belle Bouldin, do hereby give, grant, alien, and convey unto Charles, David, Powhatan, and James Bouldin, in undivided equal portions, the following tracts or parcels of land, to be held in common and unsold until the youngest of said boys shall become of age, that is, the age of 21 years, known and described as follows, to wit.” Then follows proper description of the land in controversy, and usual habendum and warranty clauses unto the said grantees, “their heirs and assigns forever.” It appears from the record that prior to the time the youngest of said grantees arrived at the age of 21, and before the sale of plaintiffs’ lands by order of Probate Court hereinafter referred to, the two grantees, Charles and David Bouldin having deceased, leaving David W. and Belle Bouldin their sole heirs, said David W. and Belle Bouldin conveyed to defendant all their interest in the land in controversy.

The Probate Court of Wise County convened July 21, 1884, and adjourned August 7, 1884. On application of plaintiffs, who were then over 14 years of age, and capable of selecting a guardian under our law, said court on the 2nd day of August, 1884, appointed a guardian of the estates of plaintiffs, which guardian on the same day qualified according to law and filed an inventory. The next term of said court convened September 15th, and adjourned October 6, 1884. The record shows an order of sale to have been entered upon the minutes of said court directing the sale of the land in controversy by said guardian.

This order is not dated, and the Court of Civil Appeals finds as a question of fact that the record of this cause “does not show affirmatively that the order of sale was made without a citation or the possibility of a citation served for the length of time required under

article 2575 of the Bevised Statutes.” The statute cited requires notice of applications to sell a ward’s land to be given to “all persons interested in the ward,” by posting same “for at least twenty days before the first day of the term of the court to which the citation is made returnable.” The guardian’s report of sale was confirmed by decree of the court filed October 4, 1884, which recites that it appeared to the court that the sale had been made “in conformity with law and the order of the court heretofore made.” The defendant deraigns title by mesne conveyances from the purchaser at such sale.

The court below rendered judgment for defendant, and the Court of Civil Appeals affirmed the same. The record shows, that at the time the probate proceedings were had plaintiffs were residents of California, and therefore plaintiffs claim that the Probate Court of Wise County, Texas, though it had jurisdiction to appoint a guardian, had no jurisdiction to order a sale for the purpose of educating the wards, but should have confined its orders to preservation of the estate.

The statute authorizing the appointment of guardians in such cases expressly provides for the sending of money abroad to educate the nonresident minor. The nonresident minor can only dispose of his estate through the proceedings of the Probate Courts of Texas, and if such courts, when authorized by statute, can not make valid disposition of the minor’s land for his education, then he might be forced to the alternative of moving into the State or foregoing the advantages of an education. We can not so construe the law as to make the preservation of the property of more importance than the education of the ward.

Bev. Stats., art. 2515. The Probate Court being a court of general jurisdiction within the scope of the powers conferred upon it in matters of guardianship, its proceedings can not be attacked collaterally for fraud, as seems to have been attempted in this case; but can only be .attacked for such cause in appropriate proceedings instituted for that purpose. Therefore we can not consider any assignment revising that issue. 80 Texas, 45. Plaintiffs contend that the Probate Court had no jurisdiction to order the sale of the property, for the reason that no notice of the application to sell was given, as required by

article 2675 of the Revised Statutes, above cited. We do not deem it our duty to consider or express ■an opinion as to whether notice of the application to sell realty was, .at the time these proceedings were had, a jurisdictional fact, because the plaintiffs, who are seeking to attack the validity of the judgment •of the Probate Court as being void for want of such notice, have not shown that no such notice was given. We can not say as a matter of law that the finding of the Court of Civil Appeals on this question, above set out, is without evidence.

The law, in the absence of proof, presumes that all jurisdictional facts existed. If notice was a jurisdictional fact, the defendant relying upon the judgment was not called upon to establish such notice, nor to show the order of sale to have been entered at such a time as to make notice possible; but the burden was upon plaintiffs to establish the fact that notice was not given. We therefore conclude that the probate proceedings, aided by the legal presumptions above discussed, were not void, but were sufficient to pass the title of plaintiffs to the purchaser at the guardian’s sale.

Plaintiffs claim, however, that the clause in the deed above set out, “shall be held in common and unsold until the youngest of said boys shall become of age, that is, the age of 21 years,” was a valid limitation on the power of each grantee and all persons claiming under them to dispose of the property until the youngest grantee arrived at the age of 21, and that therefore the deed from David W. and Belle Bouldin, above referred to, as well as the probate sale, were Aoid, because made before the youngest of said grantees was 21 years old.

It is clear that the language used does not amount to a condition the breach of which would defeat the estate of the grantees or either of them, and cause same to revert to the grantor or his heirs. It is not contended by plaintiffs that the language of the deed is such as to annex a condition to the estate of the grantees therein, for it could avail them nothing, in this suit of trespass to try title, in which they must recover, if at all, on the strength of their own title, to show that such title had been defeated by condition broken.

The language of the granting clause in the deed is sufficient under the statute of Texas to convey an estate in fee simple. Rev. Stats., art. 551. The question is, could the grantor conveying to the grantees a vested estate in fee simple, without a condition the breach of which would avoid the estate granted, impose a valid limitation or restriction upon the power of the grantees to convey the estate granted for any period of time, however reasonable? The estate of the citizen is not the land itself, but the status or relation which the law permits him to bear towards the land.

The land is an inanimate body towards which different persons may under the law bear different relations, each constituting a status or estate in the land; as an estate for years in one, followed by an estate for life in another, and an estate in fee in another. The nature and incidents of these different estates are fixed by known rules of law. Some are necessary; others are usual incidents. The law will not permit private parties to dispense with the former by contract.

Since these relations or estates are the creatures of the law, their nature and incidents may be changed thereby; from which it follows that, the State may, by law, impose restrictions and annex conditions to its grants, which the general rules of law forbid to the individual. We have seen that the deed in question vested in the grantees a fee simple estate.

Unlimited power of alienation in the holder to the extent of his capacity to convey under the law is a necessary incident to a vested estate in fee simple; for if a condition not to alien, for a particular time, or to a certain person, etc., be annexed to the estate, and if it be conceded, that such condition is valid, nevertheless the conveyance which breaches the condition is good as between the grantor and grantee therein, the condition not inuring to the benefit of such grantor and he being estopped by his own conveyance, and is also good as to the original grantor, for whose benefit the condition was annexed, until he re-enters, for condition broken, livery of seizin being necessary to the creation of such estate, it could not at common law be defeated only by corresponding notoriety of re-entry.

If, as above shown, the conveyance is good at all events against the grantor therein, and good as to the original grantor until re-entry for condition broken, even when there is a condition against alienation, then it results that the conveyance would be valid as to both of said grantors when there is no condition annexed to said estate. The first grantor could not complain, because there would be no condition broken, and therefore no right of re-entry in him; and the second grantor could not complain, because he would be estopped by his own conveyance.

Thus it appears that unlimited power of alienation exists in such cases, as stated above, no matter what conditions or limitations are sought to be imposed, and that the common law afforded no remedy for breach or violation of such conditions or limitation except the right of re-entry for condition broken; and that only affected the right of the grantee in the prohibited conveyance.

Then, since this unlimited power of alienation is a necessary incident to such estate, and since there is no person who can enforce the attempted limitation on the power to sell when there is no condition, it follows that the words of limitation in the deed above are ineffectual in law, and the deed must be construed as if they had not been written therein. 29 Mich., 84; 38 Am. Rep., 602; Co. Lit., secs. 325, 330, 351.

"We express no opinion as to what would have been the effect of the deed above set out if the language used had been sufficient to express a condition in restraint of alienation until the youngest grantee arrived at the age of 21. The following authorities discuss the question: Laval v. Staffel, 64 Texas, 372, and cases cited; 22 Am. Dec., 458 (3 Mo., 40), and note; Gray v. Blanchard (8 Pick.); Leading Cases Am. Law, Real Prop., 115, 150; 2 Minor’s Inst., p. 76, 234, et seq., 339, 357, and cases cited; Large’s case, 2 Leonard, 282; 3 Leonard, 182; Lit., secs. 360, 361; Co. Super.

Lit., 223; Sheppard’s Touchstone, p. 139, note 28, citing Large’s case, 27 Mich., 84; Restraints on Alienation, by Gray, 32; 64 Pa., 17; 18 Pick., 459; 1 Warv. on Vend., p. 453-455; 57 Am. Dec., 471, and note. The judgment is affirmed. Affirmed. Delivered December 10, 1894.