Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1894-12-13

Synopsis of Decisions Rendered Mon
day, December 40

Austin. Tex, Dec. III. q; and 4.
w. Bouldln vs.. w Miller, Jr.--Error 10
the second district. Trespass to try
title. Jumes E. BUuldln was the COM
mon source. aud in 1876 made a deed
to the land as follows; II, James +,
Bouidin, In consideration OF natural
love and affection / have for my grand
children, do hereby give. grant. alien
and convey unto Charles. David Pow
haitian and JamVa BOuldin equal undl-
Vidcd portions Of the following tracts
of land to be held In common and un-
sold until the youngest OF said boys
shall become Of age, that IS the age OF
~" Then follows the description and
the usual habendum and warranty
clause unto said grantees, their heirs
and assigneeS forever" Before the
youngest became OF age two OF tho
grtnteCs. Ch1rcs and David, died, and
their sole heirs sold their interest to
the defendant Miller After this In
1881, ON replication OF the guardian OF
plaintiffs, the land WAS sold by order
OF the probate court OF Wise county
and defendant Miller deralgns title hy
mesuo cOnveyances from the purchaser
at such sale, Judgment below for de-
fendant
l. Plaintiffs at the time Of tho pro-
bate proceedings were minors and were
residents Of California aud they claim
that therefore. while the court had
power 20 appoint a guardian, Il had
no Jurisdiction 10 order a sale for the
purpose ot educating the wards, The
statute authorizing the appointment
OF guardians In such cases expressly
provides for sending money abroad to
educate the nonresident minor The
nonresident minor can only dispose of
his estate through the probate courts
OF Texas, and " such courts can not
make valid disposition of the minors
land for his education. then he might
be forced either TO move into the
state or forcgo the advantage of am
education. This court can not so con
strue the law as TO make the pre-
servation of tho property Of more i'm
ward.
2 The court OF civil appeals find as n
fact that the record does not show nf-
TENTATIVELY that the order of sale was
made without citation or the possibility
OF citation served for the time re-
dulred by the statute" The probate
court being one of general Jurisdiction.
It's proceedings are not subject TO col
lateral attack for fraud as seems 10
have been ATTEMPTED, and this court
cannot say as Il matter OF law that
the finding OF the court of civil an
peals Is without evidence. The burden
was upon plaintiffs to show that no.
uce was not givcn. The probate pro-
ceedings, aided by the legal presump-
tons, were not void and passed tide
sale.
D. plaintiffs claim that the clause In
the deed "to be held In common and
unsold until the youngest shall be-
come OF age" was a valid limitation OF
each grantee and all persons claiming
under them, to dispose of the property
until the fr.a 80, ~
thcreforc both the deed from the heirs
OF the deceased grantees and the pro-
bate proceedings We're void for the
reason that they were before the com
ing Of age OF the Youngest grantee.
The granting clause In the deed is
suiicient TO convey an estate IN fee
simple. Since the unlimited power OF
alienation Is necessary incident 10
such estate. and since there Is 10 per
son who can enforce tho limitation on
the power 70 sell when there Is no CON
diuOn, II follows that the words Of
limitation In the deed are inefectual IN
law and the deed must be construed ~
n they had not been inserted No
opinion IL expressed as TO what would
have boon the effect of the deed If the
words had been sufficient to express
q condition. Affirmed, Opinion by Den.
man. ].
]. L. Hume q al, VS.. Robert Ware
Cgruhed question from the third dis
triot When land has been located hy
virtue OF certificate aud patented
VIII conveyance Of the ccrtificate pass
title TO the land7 n Ia held that a
transfer OF the certlficate will convey
TO the grantee an equitable tile to tho !
land located nv virtue thereof n the
grantor had title 70 the land (6s Texas
AS; Ab Texas. 500. 90 Texas, 25; Thomp-
son We, LanEdon. present torm) The |
cases cited were Instances of transfer
or tho certificate after location but |