Anderson v. Stockdale

• Citation: 62 Tex. 54
• Decision Date: 10 June 1884
• Docket Number: Case No 1370.
• Parties: PHILIP ANDERSON v. F. S. STOCKDALE.
• Court: Supreme Court of Texas

62 Tex. 54

PHILIP ANDERSON

v.F. S. STOCKDALE.

Case No 1370.

Supreme Court of Texas.

Jun. 10, 1884.

APPEAL from Calhoun. Tried below before the Hon. H. Clay Pleasants.

Plaintiff on the 17th of February, 1881, sued F. S. Stockdale, D. C. Proctor and M. D. Monserrate, the trustees of the Indianola City and Land Company, a joint stock company, and T. C. Allen and A. Schwartz, to recover of them property inherited from his mother and devised to him by her last will, and also to recover of Stockdale the value of such property as had been lost to plaintiff by reason of Stockdale's alleged neglect and mismanagement of the estate of Sarah F. Anderson, as her executor.

He alleged in his petition that Mrs. Anderson's will, dated May 30, 1860, and probated May, 1866, appointed F. Jones and F. S. Stockdale joint executors, and that F. Jones died before the testatrix, and that because of the grant of a joint power by the will to the two executors, Jones and Stockdale, Stockdale alone could not exercise the powers conferred by the will. The will authorized administration outside the probate court. The property devised to plaintiff and named in the will was, first, two leagues of land in Nueces county, upon which the city of Corpus Christi is situated, originally granted to Levi Jones, assignee of Jose M. Bargas and Maguel Basques. The title to these leagues passed into I. Temple Doswell. They were by him recovered from adverse claimants by suit in supreme court of United States, and afterwards on the 20th of November, 1859, conveyed by Doswell to Mrs. Sarah F. Anderson.

2. A three-eighth interest, undivided, in sixteen leagues of land in Calhoun county, including the city of Indianola, now controlled by the Indianola City and Land Company--the title to which originated in Peter W. Grayson, who was common source of title--passed subsequently in part to Albert T. Burnley, from whom Mrs. Anderson derived her title by deed dated April 19, 1852, duly recorded.

3. A three-eighth undivided interest in one league of land in Jackson county, originally granted to L. Mansa, title to which also came to Mrs. Anderson through the deed of April 19, 1852, from A. T. Burnley.

4. Twelve lots in La Salle, and household furniture, etc.

The petition further alleged that Stockdale became executor of Mrs. Anderson's will in 1866, and without legal authority proceeded to exercise the powers conferred by the will.

That the will mentioned the property sued for, was duly recorded, and was notice to the world of plaintiff's rights to the property named.

That Stockdale filed no inventory, as required by law to do, and never accounted either to the probate court or to plaintiff, and refused to settle with plaintiff after he attained his majority, on 29th of April, 1868.

That Stockdale as executor, without authority under the will, conveyed to one W. R. Johnson on 27th of July, 1868, plaintiff's three-eighths of fifteen of the leagues of land in Calhoun county.

(This title subsequently returned and vested in the Indianola City and Land Company before this suit was brought.)

Stockdale made this conveyance under the following condition of affairs:

On the 3d of June, 1853, W. R. Johnson had recovered in the district court at Galveston a judgment against Levi Jones, the father of Sarah F. Anderson, for $17,376. By an instrument in writing, dated April 24, 1855, Mrs. Anderson, to secure to her father time to pay said judgment, and because, as her obligation recited, the notes which became merged in the judgment were given for the purchase money of her interest in the sixteen leagues of land conveyed to her by Burnley, agreed with Levi Jones to hold the land in Jackson and Calhoun counties subject to the payment of the debt due Wm. R. Johnson. Johnson was not a party to this instrument. Johnson knew of Mrs. Anderson's title to the lands before he instituted his suit against Jones, but did not make her a party or ask any decree against the land. The lands conveyed were then worth greatly more than the amount of Johnson's debt.

Plaintiff claimed that Stockdale's conveyance to Johnson was void to convey any title adverse to plaintiff. He charged that Stockdale held the lands as trustee for plaintiff and that Johnson had notice of the trust, and after conveyance to him held the land subject to the same trust that it was held under by Stockdale.

Plaintiff claimed that if Johnson was in equity entitled to the payment of said debt, that he had long since been fully paid; that ever since July 27, 1868, the three-eighth interest had been under the control of F. S. Stockdale and of the Indianola City and Land Company, claiming to represent Johnson and selling Johnson's interest as his agents, and they had received as his agents between July 27, 1868, and February 17, 1881, for Johnson, $51,924.90, an amount largely in excess of the debt and interest. The plaintiff further alleged that on the 20th of September, 1869, all the owners of the sixteen leagues of land in Calhoun county by a deed (which was made a part of the petition) formed a joint stock company known as the Indianola City and Land Company, and conveyed all their undivided interests in the land to the trustees of that company, and took in lieu thereof shares of stock ??.That Stockdale, signing as executor of Sarah Anderson at that date, conveyed all of the plaintiff's interest in the sixteen leagues of land to that company without authority of law; that the company received the land charged with the same trusts as Stockdale held it under, and were trustees for plaintiff.

As to defendants Allen and Schwartz, it was stated that they purchased on the 27th of August, 1879, a league of land from the Indianola City and Land Company for $13,089, $6,666.67 of which they paid in cash and gave their notes for the remainder, one-half to be paid in twelve and one-half in twenty-four months, vendor's lien being retained. It is stated that they bought the land with notice of and charged with the same trusts that it was held under when in Stockdale's hands, as executor, and prayer is made against them for the recovery of plaintiff's three-eighth interest and partition. But plaintiff says he is willing to make them a title upon their paying him three-eighths of the price they agreed to pay for said land.

None of those who purchased from the Indianola City and Land Company were made parties; nor was the land sold included in the prayer for partition, except that sold Allen and Schwartz.

Plaintiff claimed that if the deeds by Stockdale to Johnson and to the Indianola City and Land Company were invalid, he was entitled to a partition of the sixteen leagues of land, or so much as remained unsold, as against the Indianola City and Land Company, who were tenants in common with him, and he prayed that his title might be adjudged valid as to said lands, and that he might have partition.

He further claimed that if Stockdale had the right to convey plaintiff's interest to the Indianola City and Land Company, then they were bound to account to him as a stockholder for his share of the profits of said joint stock company since the 20th of September, 1869, which neither they nor Stockdale had done; and if the deed to Johnson was valid, still he had a three-eighth interest in one league remaining, which he was entitled to have partitioned, or in virtue of which he was entitled to share in the profits of the joint stock company.

As to F. S. Stockdale, it was alleged that he has never accounted to plaintiff; that he has been personally largely benefited by the formation of the Indianola City and Land Company, and it was with a view to this, and not for plaintiff's benefit, that he made the deed to the company of plaintiff's interest in the lands.

That Stockdale, since the 29th of May, 1866, had held in trust for plaintiff the three-eighth interest in the L. Mansa league, in Jackson county, that he might have received rent therefor. That he had refused to turn over to plaintiff his interest in the land, or to account to or pay him any rent for it. That he permitted it to be sold for taxes on the 6th of May, 1868, to a private person, and had not redeemed it up to July 14, 1881.

Prayer was made that Stockdale might be compelled to turn over to him the possession and title deeds, and if it had been lost to plaintiff by tax sale, that plaintiff might have judgment against him for its value.

Plaintiff claimed also $2,700.61 from Stockdale for lands of plaintiff sold by Stockdale before the date of his conveyance to W. R. Johnson; and also asked that he account for all personal property, and pay over proceeds and interest to plaintiff and account for all moneys received and disbursed; and plaintiff charged that all Stockdale's acts were in law fraudulent. He asked that if he had no remedy against the Indianola City and Land Company and Allen and Schwartz, that Stockdale be held liable for and bound to account for and pay over to plaintiff the full value of all property lost to plaintiff by his acts and omissions and unauthorized conveyances; that he may be removed from his position as executor of Sarah Anderson's will, and further prayer for costs and general relief.

Defendants demurred generally and specially to the petition. The demurrers alleged in effect:

1. Want of equity in the bill.

2. Misjoinder of parties defendant.

3. Limitation of two, four, five and ten years, and stale demand.

4. Want of necessary parties defendant.

5. Multifariousness.

They were all sustained except that setting up multifariousness and misjoinder of parties defendant, and the plaintiff declining to amend, the suit was dismissed and plaintiff appealed.

A. B. Peticolas, for appellant, on the proposition that power vested by a will in two jointly without words of survivorship cannot be exercised by one alone, cited: Johnson v. Bowden, 43 Tex., 672;Langley v. Harris, 23 Tex., 569;Crosby v. Huston, 1 Tex., 226;Tippett v. Mize, 30 Tex., 366; 1...