62 S.W. 815 (Tex.Civ.App. 1901), Fox v. Robbins

CourtCourt of Appeals of Texas. Court of Civil Appeals of Texas
Writing for the CourtNEILL, J. (after stating the facts).
Citation62 S.W. 815
PartiesFOX ET AL. v. ROBBINS ET AL. [1]
Date27 March 1901
Docket Number.

Page 815

62 S.W. 815 (Tex.Civ.App. 1901)

FOX ET AL.

v.

ROBBINS ET AL. 1

Court of Civil Appeals of Texas

March 27, 1901

Appeal from district court, Navarro county; L. B. Cobb, Judge.

Suit by Eli Fox, as administrator of the estate of W. R. Bright, deceased, and others, against Mary B. Robbins and others. From a decree in favor of defendants, plaintiffs appeal. Reversed.

Page 816

This suit was brought on the 20th day of December, 1899, by the appellant Eli Fox, as administrator de bonis non of the estate of W. R. Bright, deceased, against the appellee Mary B. Robbins, W. H. Staley, S.D. Curtis, and W. F. Seale, to vacate a decree rendered on the 20th day of March, 1896, by the district court of Navarro county, against the Crystal Jersey Farm Association, an alleged domestic corporation, and J. H. Townsend, foreclosing a vendor's lien on certain real property, to cancel a deed made to Mary B. Robbins by the sheriff by virtue of a sale under an order issued upon said decree, and to recover said property, together with damages for the use and occupation of the same. A plea in abatement, putting in issue Fox's capacity as administrator, having been sustained, the original petition was amended by retaining him as a party, in which he was designated as plaintiff No. 1. In the amendment the heirs of W. R. Bright were made parties, and designated as plaintiffs No. 2. The Crystal Jersey Farm Association, designated as plaintiff No. 3, was also made a party; and so were Eli Fox, W. J. Gordon, Jr., and A. Fox, alleged directors and trustees of the Jersey Farm Association, and were designated as plaintiffs No. 4. J. A. Townsend was made a party defendant. All the parties plaintiff, thus made and designated, prayed that said decree be vacated, all proceedings had thereunder set aside, the deed canceled, and for recovery of the land and revenues arising therefrom. They asked that such relief be granted, first to plaintiff No. 1; if not to him, then to plaintiffs No. 2; and so on, until all the plaintiffs were named, in the order designated. The pleadings of plaintiffs are too voluminous to be stated, but from their allegations the following propositions may be evolved: (1) That anterior to the institution of the foreclosure proceedings by Mary B. Robbins against the Crystal Jersey Farm Association such corporation had ceased business and forfeited its charter; whereupon the title to the property vested in W. R. Bright by reason of his ownership of all save two of the shares of its stock, and, he having died prior to the institution of the suit, neither the administrator of his estate nor his heirs having been made parties, the decree of foreclosure and all proceedings had thereunder were void. (2) That S.D. Curtis, at the time he accepted service as vice president of the Association in the foreclosure suit brought against it by Mary B. Robbins, was the latter's agent, who employed counsel, and directed the institution and prosecution of the suit; that W. F. Seale, who accepted service as secretary and treasurer of the association, was, at the time of such acceptance,

Page 817

in possession of the property in controversy as the agent of, and holding the same for, the estate of W. R. Bright, deceased, and that in so accepting service each was acting together in the interest of Mary B. Robbins, for the purpose of obtaining title for her to the property under the foreclosure sale for much less than its value, and in fraud of the interest and rights of the Jersey Farm Association, its shareholders, and the equitable owners of said property; and that, therefore, the decree of foreclosure had upon such pretended acceptance of service, as well as all the proceedings thereunder, was voidable, and subject to be set aside by a court of equity in a suit brought directly by the parties at interest for that purpose. Besides the plea in abatement mentioned in the preceding part of this statement, the defendants, after filing special exceptions to plaintiffs' pleadings, among which was that the petition did not show sufficient reason for plaintiffs' failure to sooner discover the alleged fraud in obtaining the judgment, answered by specially denying each and every one of the material allegations contained in plaintiffs' petition, and pleaded also the three-years statute of limitations to plaintiffs' action to recover the land, and the four-years statute and stale demand to their right to vacate the decree of foreclosure and annul the proceedings had under it. The defendant W. H. Staley pleaded specially that he had leased the premises in controversy to Mary B. Robbins, the purchaser under the foreclosure sale, in good faith, without knowledge or notice of the alleged infirmities in said decree. He also suggested valuable improvements made by him on the premises in good faith. The case was tried before a jury, who, after all the evidence was introduced both by the plaintiffs and defendants, were peremptorily instructed by the court to return a verdict for defendants. From the judgment rendered upon the verdict brought in in obedience to the instruction, the plaintiffs have appealed.

The facts developed upon the trial are substantially as follows: The land in controversy is 76.9 acres of the Jehu Peoples league, situated about a mile and a half southeast of the city of Corsicana, in Navarro county, Tex. It was purchased on July 1, 1891, by J. A. Townsend from Lucia R. Robbins, and for a part of the purchase money Townsend executed his promissory note, retaining a vendor's lien upon the premises in favor of Mary B. Robbins for $2,000, with interest payable annually at the rate of 8 per cent. per annum. The note matured on the 1st day of July, 1893. The deed to Townsend contains a recitation of the note, and a reservation of the vendor's lien to secure its payment. A short time after this purchase, J. A. Townsend, W. R. Bright, and W. W. Davis entered into a partnership for the purpose of doing a dairy business on the premises. The partnership borrowed from the City National Bank of Corsicana $1,500, with which to buy cattle and the dairy outfit, and pursued its business until the 8th day of December, 1891, when, by mutual consent, it was dissolved. Upon the dissolution Townsend and Davis transferred their interest in the land, cattle, and dairy fixtures to W. R. Bright, who, as the sole consideration for such transfer, expressly assumed the payment of the vendor's lien note to Mary B. Robbins, and of the $1,500 which the partnership had borrowed from the bank. On the 24th day of February, 1892, W. R. Bright applied to and obtained from the state of Texas a charter, under the name of the "Crystal Jersey Farm Association," for the purpose of "growing, selling, and purchasing seed, plants, trees for agricultural, horticultural, and mechanical purposes." In this charter W. R. Bright, S.D. Curtis, and W. F. Seale are named as the corporation's board of directors for the first year of its existence. It shows the capital stock of the association to be $10,000. The corporation was organized under the charter by the parties named therein as its directors, with a capital stock of $8,000, divided into 160 shares, of $50 each. Of these shares, 158 were issued by the corporation to W. R. Bright, and one each to W. F. Seale and S.D. Curtis, the parties, in the order named, having been elected president, vice president, and secretary and treasurer of the corporation. On February 25, 1892, W. R. Bright executed and delivered to the Jersey Farm Association a deed conveying the land in controversy, with all its appurtenances thereto. This deed expresses a consideration of $8,000 paid. It makes no mention of the vendor's lien note made by Townsend to Miss Robbins. No money was paid by the Crystal Jersey Farm Association to W. R. Bright as the consideration of this deed. The real consideration was capital stock of the association to the extent of $8,000, $7,900 of which were issued to W. R. Bright, and $50 each to S.D. Curtis and W. F. Seale. Neither Curtis nor Seale paid anything for their share, but it was issued to them at the request of Bright, so that they might become directors in a corporation so organized. There were never any other shareholders of the corporation. The only meeting, save the one held in 1896, ever held by its board of directors, was in February, 1892, at the time the corporation was organized and its officers elected. Seale, who was in charge of the Jersey Farm during the partnership, after the organization of the corporation, continued in charge, managing its affairs for the association, until 1893, during which time it lost money, and the loss was charged on the books of the corporation to W. R. Bright. In 1894, Seale sold the cattle and all the dairy effects to one Hardison, taking the latter's note therefor in the sum of $1,208, payable to W. R. Bright, and secured by a mortgage on the property. In 1892, Seale rendered the property of the corporation

Page 818

in its name for taxes, which were paid in 1893. It seems not to have been rendered for taxes for the year 1893, but Seale rendered it for the years 1894 and 1895 as the property of W. R. Bright. In 1895 he rented the land in controversy as Bright's property to one W. A. Polk for the years 1896, 1897, and 1898. On December 24, 1895, shortly after the land was rented to Polk, W. R. Bright departed this life, leaving a will by which R. E. Prince was made his executor. The will was duly probated, and Prince qualified under it, and in accordance therewith administered the estate, filed his final account, which at the September term, 1899, of the probate court of Navarro county was confirmed, the estate closed, and the executor discharged. The order of the court closing the administration and discharging the executor was never appealed from, set aside, or in any way modified, nor did any debts remain unpaid against his estate...

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21 practice notes
  • 108 S.W.2d 403 (Mo. 1937), Washington University v. Baumann
    • United States
    • United States State Supreme Court of Missouri
    • July 30, 1937
    ...The true meaning of the Brinkerhoff-Faris Trust Co. case. Brinkerhoff-Faris Trust Co. v. Hill, 323 Mo. 183; State ex rel. v. Caulfield, 62 S.W. 823. (11) The remedy alleged to be afforded by the Tax Commission Law is not plain and obvious. (12) The remedy alleged to be afforded by the Tax C......
  • 190 P. 681 (Okla. 1920), 9546, Pettis v. Johnston
    • United States
    • Supreme Court of Oklahoma
    • June 1, 1920
    ...Annotations in 60 Am. St. Rep. 640; Nat. Metal Co. v. Greene Consol. Co., 9 L. R. A. (N. S.) 1062; Fox v. Robbins (Tex. Civ. App.) 62 S.W. 815; Ind. L. & Tr. Co. v. Owen, 162 P. 818; Harrison v. Hargrove, 109 N.C. 346, 13 S.E. 939. When such party applies to equity he must offer to do e......
  • 54 S.W.2d 158 (Tex.Civ.App. 1932), 7705, Murphy v. Johnson
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • October 19, 1932
    ...accordance with the rule announced in Sparks v. Taylor, 99 Tex. 411, 90 S.W. 485, 6 L. R. A. (N. S.) 381; Fox v. Robbins (Tex. Civ. App.) 62 S.W. 815. We do not sustain appellants' contention that the effect of sustaining all of the appellees' special exceptions was merely to strip the plea......
  • 393 S.W.2d 684 (Tex.Civ.App.
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • August 24, 1965
    ...Ebro and its former stockholders as alleged by appellants. In this connection see the following authorities: Fox v. Robbins, Tex.Civ.App., 62 S.W. 815, writ refused (1901); Buchanan v. Bilger, 64 Tex. 589 (1889); Alexander v. Hagedorn, 148 Tex. 565, 226 Page 689 996, 998 (1950); Kuper v. Ku......
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