This suit was instituted by the appellee, W.Q. Richards, as guardian of Marcus L., Una A., and Lelia Richards, to recover from H.B. Smoot and W.J. Hatch the sum of $5904, money received by them from the present guardian and from Hattie A. Crisp, a former guardian of said minors, upon the ground that the guardians had misappropriated the funds belonging to the estates of said wards in purchasing lands therewith as an investment from appellants to said amount, without an order of the probate court of Scurry County, where the guardianship was pending, confirming and approving such investment, and ordering the money paid.
The facts are, as we conclude from a mass of evidence, that the guardian held four United States bonds of $1000 each, and upon application of the former guardian to the probate court she was permitted and directed by the orders of said court to sell them, and to invest the proceeds in three certain sections of land lying in Scurry County, the numbers of which sections were given in the order, but the price to be paid was not named, the order providing that warranty deeds should be delivered to her for said lands, and the titles thereof "to be clear of any cloud, as provided by law."
Acting upon these orders, the bonds were sold and the proceeds paid to appellants for the lands named, at the rate of $3 per acre, and a warranty deed dated June 5, 1890, was made to Hattie A. Crisp, who was then guardian of said minors, by appellants, conveying said lands to her. In January, 1892, Mrs. Hattie Crisp presented her resignation of said guardianship to the probate court of Scurry County, and accompanying it her final account, showing the condition of the estates of said wards, and asking for final settlement and to be discharged, and in which she refers to the above investment as follows: "And said guardian would further show that, pursuant to an order of this court authorizing the same, she invested funds, the proceeds of four United States 4 per cent bonds, $1000 each, to the amount of $5760, belonging to said minors, in 1920 acres of land situate near Snyder, Scurry County, consisting of sections 337, 339, 381, in block 97, Houston Texas Central Railway survey of 640 acres each, at $3 per acre; as will more fully appear in report of said investment to be filed in said court."
Notice of this resignation and of final settlement was duly published, and on the 9th day of March, 1892, the probate court entered the following order: "On this day came on to be heard by the court the application of Hattie A. Crisp, guardian of the persons and estate of said minors, for leave to resign her guardianship, and it appearing to the court that said guardian has filed with said application her final account, verified by her affidavit, showing the true condition of said guardianship, and accounting for all the estate belonging to said minors, and it further appearing to the court that the notice of the filing of said application and account has been given in the manner required by law, it is therefore ordered by the court that said application be granted, and that said Hattie A. Crisp, guardian as aforesaid, deliver the persons and estate of *Page 664 said minors, Marcus L., Una A., and Lelia Richards, to W.Q. Richards, who is this day duly appointed guardian of the persons and estate of said minors, and that upon compliance with this order and the surrender of her letters of guardianship she be permitted to resign her trust and be discharged."
Article 2563, Revised Statutes of 1879, provides that where a contract has been made by a guardian for the investment of money in real estate under order of the court, such contract shall be reported in writing to the court by the guardian, "and it shall be the duty of the court to inquire fully into the same, and if satisfied that such investment will benefit the estate of the ward, and that the title to such real estate is valid and unincumbered, the court may approve the contract and authorize the guardian to pay over the money in performance of the same; but no money shall be paid out by the guardian on any such contract until such contract has been approved by the court by an order to that effect entered upon the minutes of the court."
It appears in this case that no order of the court was ever made "approving the contract," and consequently the guardian had no right or authority to pay the money over on such contract, and of this want of authority in the guardian the appellants must be held to have known, as the statute is plain in providing that nothing short of an order approving the contract and ordering the guardian to pay the money is sufficient to authorize such act, and this order must be made and entered on the minutes of the court. See Smoot v. Richards, 27 S.W. Rep., 967.
Persons dealing with guardians in relation to the estate of the ward must take care that the law is being fully complied with; otherwise they get no title to the ward's property, and run the risk of losing their own.
We are of opinion that the judgment in this case ought to be affirmed.
Affirmed.
ON MOTION FOR ADDITIONAL CONCLUSIONS, AND FOR REHEARING.