“That the loss or destruction of a valid deed does not reverse or invalidate the transfer of title made by the deed is, of course, well settled.”
How later courts described this case
- “That the loss or destruction of a valid deed does not reverse or invalidate the transfer of title made by the deed is, of course, well settled.”
- AThat the loss or destruction of a valid deed does not reverse or invalidate the transfer of title made by the deed is, of course, well settled.@
Written by the judges who cited it.
The opinion
Mr. Justice Smith
joined by Justice Sharp dissenting.
The majority opinion correctly decides that the one-half interest owned by the children of Juan Nebarez passed under 1944 deed, and that the cause should be reversed and rendered to that extent. However, I disagree with the majority opinion as to the disposition made of the interest owned by Nebarez.
The parties stipulated that Juan Nebarez was legally adjudged insane by the County Court of Kent County, Texas, on July 21, 1933, and remained insane until he was legally adjudged sane by the same court on May 30, 1950. The majority *525 opinion holds that the 1944 deed vested title in the respondents. This would be correct if you assume that no guardian was appointed for Juan Nebarez. A deed of an insane person is merely voidable, where no guardian has been appointed, and can only be attacked by the person at whose instance it is voidable. A different rule obtains, however, with respect to the contracts of a person who has been placed under guardianship pursuant to a valid judgment of insanity. If a guardianship of the estate of Juan Nebarez was pending and active when Nebarez executed the deed in 1944, such attempted conveyance was void. In that event, the ward has lost control of his estate and the property was within the jurisdiction and under the control of the probate court on the date of the 1944 deed. 24 Tex. Jur. 381; Baldwin v. Davis Hill Oil Co., 245 S.W. 2d 353, 362 . See also Elston v. Jasper, 45 Texas 409 , 21 T. L. R. 576.
The record in this case presents a situation where Rules 434 and 505, T. R. C. P. should be applied. As said by this Court in the case of London Terrace v. McAlister, 142 Texas 608 , 180 S.W. 2d 619 , "our appellate courts exercise a generous discretion in remanding cases after reversal * * * Our decisions show that causes have been remanded after a reversal rather than rendered, when the case was tried on the wrong theory, when the evidence was not fully developed, * * * or when it seemed probable that the ends of justice would be better sub-served thereby.”
Under Rule 434, Vernon’s Texas Rules of Civil Procedure, the Court of Civil Appeals shall remand the case for a new trial only when “it is necessary that some matter of fact be ascertained or the damage to be assessed or the matter to be decreed is uncertain.” Rule 505 provides that the Supreme Court shall “* * * reverse the judgment and remand the case to the lower court, if it shall appear that the justice of the case demands another trial.”
It was held in the case of London Terrace v. McAllister, supra, and also in the case of Williams v. Safety Casualty Co., 129 Texas 184 , 102 S.W. 2d 178 , that the above quoted phrases from Rules 434 and 505 mean the same.
For the reasons stated, the judgments of the trial court and the Court of Civil Appeals should be reversed and rendered in favor of petitioner as to the one-half interest in the land owned by the children of Juan Nebarez, and be reversed and *526 remanded to the trial court as to the one-half interest owned by Juan Nebarez to ascertain whether or not an active guardianship was in effect at the time of his conveyance in 1944.
Opinion delivered October 15, 1952.