Phœnix Land Co. v. Exall

• Decision Date: 07 June 1913
• Parties: PHŒNIX LAND CO. et al. v. EXALL et al.
• Court: Texas Court of Appeals

159 S.W. 474

PHŒNIX LAND CO. et al. v. EXALL et al.

Court of Civil Appeals of Texas. Dallas.

June 7, 1913.

Rehearing Denied June 28, 1913.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Dallas County; J. C. Roberts, Judge.

Trespass to try title by Mrs. Mary D. Exall and others against the Phœnix Land Company and others, with cross-action to quiet title. Judgment for plaintiffs, and defendants appeal. Affirmed.

W. J. J. Smith and W. J. Moroney, both of Dallas, for appellants. Spence, Knight, Baker & Harris, of Dallas, for appellees.

RAINEY, C. J.

Mrs. Mary D. Exall and her husband, Henry Exall, as plaintiffs, instituted this suit in the district court of the Sixty-Eighth judicial district at Dallas, Tex., on October 15, 1910, against Phœnix Land Company, a corporation existing under the laws of Texas, and against W. J. Moroney, as defendants, to recover on behalf of Mrs. Mary D. Exall, as her separate property, a three-tenths undivided interest in certain lands situated in Dallas county, Tex., and also for an accounting with defendants of the rents and revenues and proceeds of sales of portions of said land, received by defendants, and for adjustment of certain expenses claimed to have been paid by the defendants in recovery of the lands in certain previous litigation, including taxes, cost of improvements, attorney's fees, and other charges paid by defendants, and under appropriate allegations plaintiffs sought a partition of the said lands through commissioners to be appointed by the court. The lands described in plaintiffs' pleading comprised four tracts, but before judgment plaintiffs and defendants disclaimed as to the first and third tracts, leaving in controversy the second and fourth tracts. The second tract comprises 25 acres of land out of the John Grigsby League and Labor Survey, generally called the "Hughes and Slaughter Tract," and the fourth tract comprises 11.92 acres, a part of the Thomas Lagow League and Labor Survey, commonly called the "Mays Tract." The plaintiff Mrs. Exall sued as the sole residuary devisee and legatee under the will, duly probated, of her deceased brother, Joseph M. Dickson, who died September 11, 1909, and sought to recover her proportion of the rents and revenues of the lands held by defendants prior to her brother's death, and both plaintiffs sought to recover their proportion of the rents and revenues of said lands received by the defendants since said Joseph M. Dickson's death.

The first count of the amended petition, on which the case was tried, is in the ordinary form of trespass to try title. In other counts it is alleged, among many other things, that defendants are in possession of the lands sued for and have so been since April 10, 1905; that said lands are in large part revenue bearing, and that the rents thereof have been during all of said period and are of the reasonable value of $200 per month; that defendants have converted all of said property and lands and the revenues thereof to their own use. Plaintiffs further allege: That certain parties, composing the association known as "J. E. Downes and associates," caused deeds conveying said land to be executed to A. D. Aldridge, A. F. Hardie, and W. G. Mowry as trustees for said Downes and associates, by C. C. Bumpas and others, and the surviving directors of Texas Trunk Railway Company, which deeds contained stipulations in substance as follows: "That said J. E. Downes and associates are creditors of Texas Trunk Railway Company, as variously organized, and their privies and assigns, who are beneficially interested in this conveyance and who are represented by the law firm of Dickson & Moroney, composed of Joseph M. Dickson and W. J. Moroney, of Dallas, Tex., who are authorized to direct said trustees in the management of their said trust and in the sale, conveyance, distribution or partition of the property hereby conveyed, or any part thereof, and in the recovery by suit, or otherwise, of any of said property that may be held adversely or to which any person or persons may assert any adverse claim, or in the compromise of any adverse claim, and said trustees shall not be liable to said beneficiaries for anything they may do under the direction of said firm of Dickson & Moroney, nor are the said trustees authorized to make any conveyances of said property or otherwise affect its title without the consent in writing of the said firm of Dickson & Moroney, but shall make such conveyances without warranty, or such compromise or compromises as said Dickson & Moroney shall in writing direct; it being the purpose, however, of this deed to vest the full legal title to said property in said trustees, who are authorized to act in their own names alone as trustees, subject to the advice and direction of the said firm of Dickson & Moroney, as hereinabove stated; and either member of said firm may act for the firm in any matter or matters concerning or arising out of this conveyance of the property hereby conveyed. In the case of the death, resignation or refusal to act of any of said trustees, the remaining trustee or trustees shall become vested with all the rights, powers and title hereby vested in all of said trustees, and the said Dickson & Moroney shall have the power by instrument of writing to appoint a substitute trustee or trustees to fill the vacancy or vacancies thus created, and such substitute trustee or trustees shall thereupon succeed to all the rights and powers and title of the original trustee or trustees." "Any deed or other instrument in writing executed by said trustees, or any of them, with the written direction and consent of said Dickson & Moroney, shall be prima facie evidence of its validity and of the truth of all of the facts therein recited. This deed is executed by the authority and direction of said J. E. Downes and associates." That said firm of Dickson & Moroney was a firm of attorneys and counselors at law, practicing their profession at Dallas, Tex., composed of said Joseph M. Dickson and the defendant W. J. Moroney; their partnership in the practice of law having been formed in the year, to wit, 1885, and continuing until the ____ day of ____, 1899. That said firm was employed by the parties composing the association known as "J. E. Downes and associates," aforesaid, to enforce their claims to the lands herein in controversy, which were then claimed adversely to the members of said association, and the said Downes and associates and the persons composing said association made and executed in writing and verbally contracts and agreements respectively with the firm of Dickson & Moroney, to the effect that Dickson & Moroney should be entitled to have and receive from 10 per cent. to three-fourths, or an average of about three-fifths, of whatever was recovered on behalf of the members of said association as compensation for their services in enforcing the claims of Downes and associates. That it was agreed by all the parties with whom Dickson & Moroney thus contracted that said firm should be interested in the recovery of said lands and have an interest and part therein to the amount of a reasonable contingent fee, which should be at least three-fifths of what might be recovered, and that it was understood that the trustees, Aldridge, Hardie, and Mowry, should be entitled to receive reasonable compensation for their services as trustees, and that all costs and expenses to be entered upon for the enforcement of the rights of Downes and associates should be paid out of what should be recovered. That said trustees, Aldridge, Hardie, and Mowry, acting for the benefit of the beneficiaries, composing the association of Downes and associates, did, under the direction of said Dickson & Moroney, and pursuant to the fee contracts with said attorneys, bring suit for the land aforesaid and herein involved, and recovered it in that certain suit styled A. D. Aldridge et al. v. E. H. Pardee et al., No. 17,147 on the docket of the district court of Forty-Fourth judicial district of Texas, at Dallas. That by the judgment rendered in said cause plaintiffs recovered only a part of the lands, but, upon appeal to the Court of Civil Appeals for the Fifth Supreme Judicial District of Texas (24 Tex. Civ. App. 254, 60 S. W. 789), the trustees recovered all of the land involved in said suit, and, although further revisory proceedings were sued out and were prosecuted by the defendants to the Supreme Court of the United States (189 U. S. 429, 23 Sup. Ct. 514, 47 L. Ed. 883), the judgment of said Court of Civil Appeals was in all things affirmed, and thereby the trustees, Aldridge, Hardie, and Mowry, recovered the land in controversy therein and herein involved, for the benefit, however, of the real beneficiaries, who were the parties composing the association of J. E. Downes and associates, and also Joseph M. Dickson and W. J. Moroney did thereby become entitled to their respective proportionate interests in said lands pursuant to their respective fee contracts, which interests amount to a three-tenths interest in said lands. That plaintiff Mrs. Exall acquired all of said interest of her deceased brother, Joseph M. Dickson, under the terms of his said will. That, so standing the title of said lands, a suit was instituted by H. M. Spalding as plaintiff against said Aldridge, Hardie, and Mowry and all other beneficiaries in the trust aforesaid, and members of the association of J. E. Downes and associates, including also said Joseph M. Dickson and said W. J. Moroney.

The plaintiff in said suit thereby attempted to recover an interest in the same lands, claiming to have been a creditor of the old Texas Trunk Railway Company as variously organized, and claiming a right to an interest in said lands proportionate to his claim against said railway company. Thereupon Joseph M. Dickson, being then the owner of and entitled to the possession of an undivided three-tenths interest therein, did, at the...