American Nat. Ins. Co. v. Sutton, 3895.

• Decision Date: 25 May 1939
• Docket Number: No. 3895.,3895.
• Parties: AMERICAN NAT. INS. CO. et al. v. SUTTON, Judge, et al.
• Court: Texas Court of Appeals

130 S.W.2d 441

AMERICAN NAT. INS. CO. et al. v. SUTTON, Judge, et al.

No. 3895.

Court of Civil Appeals of Texas. El Paso.

May 25, 1939.

Original mandamus proceeding by the American National Insurance Company and others against C. R. Sutton, judge of the district court of the Eighty-third judicial district of Texas, E. H. Warnock, S. C. Johnson, and Mrs. Lurline Johnson, to compel the district judge to enter judgment in favor of complainants upon verdict returned upon special issues, wherein the other respondents also prayed for a writ of mandamus to compel entry of judgment in their favor.

Writ issued in accordance with opinion.

Frank S. Anderson, of Galveston, Johnson & Crumpton, of Fort Stockton, and Jones, Turney, Hardie, Grambling & Howell, of El Paso, for complainants.

Joseph E. Kelly and R. D. Blaydes, both of Fort Stockton, and John J. Watts, of Crane, for respondents.

NEALON, Chief Justice.

The American National Insurance Company, a corporation, and C. W. E. Hirst, R. W. E. Hirst and Icel Hirst filed in this Court their petition against Honorable C. R. Sutton, Judge of the District Court of the Eighty-third Judicial District of Texas, and against E. H. Warnock, S. C. Johnson and Mrs. Lurline Johnson, in which they prayed that this Court issue its writ of mandamus commanding Judge Sutton to enter judgment in favor of complainants in cause No. 2581, in the District Court of the Eighty-third Judicial District in and for Pecos County, Texas, alleging that upon trial upon special issues a jury impaneled in said cause in the District Court returned answers in favor of complainants which make it the ministerial duty of said District Judge to enter judgment in favor of complainants.

The action in which said verdict was returned was filed by E. H. Warnock, and Mrs. Lurline Johnson, joined by her husband, S. C. Johnson, who complained of the American National Insurance Company, C. W. E. Hirst, R. W. E. Hirst and Icel Hirst, alleging that as to certain real estate in Pecos County which the American National Insurance Company caused to be sold by virtue of the provisions of a deed of trust to secure a loan, the Insurance Company bought the property at the trustee's sale under an arrangement which the plaintiffs below alleged would constitute the Insurance Company a trustee for said plaintiffs. They alleged that the Hirsts bought the property from the Insurance Company and it was conveyed to them by deed dated August 5, 1935, and that the purchase was made with knowledge of the alleged trust in favor of the original plaintiffs. Plaintiffs below prayed for judgment cancelling and setting aside the deed from the Insurance Company to the Hirsts and vesting title in said plaintiffs, and further prayed for judgment for certain alleged rentals. In the alternative, said plaintiffs prayed for damages.

The Insurance Company answered by general demurrer, special exceptions, general denial, and plea of limitations.

The defendants C. W. E., R. W. E. and Icel Hirst adopted the demurrers, exceptions, special pleas and other defensive allegations of the Insurance Company, and pleaded specially that they did not participate in or have knowledge of any conspiracy or fraud upon the part of the Insurance Company; that they purchased the lands from the Insurance Company, paying a good and valuable consideration therefor, to-wit, $30,000, and that said payment was made in good faith. They also pleaded that they had in good faith made expenditures for permanent and valuable improvements.

The cause was submitted to a jury, which answered that: W. O. Watson orally agreed on or about February 17, 1934, to convey the property to plaintiff Warnock on ten years' time at a reduced rate of interest, upon the condition that a damage suit brought by S. C. Johnson and wife against the American National Insurance Company should be dismissed; that S. C. Johnson, as the agent and representative of E. H. Warnock, agreed that he would not become a bidder at the trustee's sale; that Watson had apparent authority from the Insurance Company to enter into the contract; that George Prendergast orally agreed to convey the property to E. H. Warnock on ten years' time at reduced interest, and upon condition that said damage suit of S. C. Johnson and wife against the Insurance Company should be dismissed; that Johnson, as agent of Warnock, agreed that the latter would not become a bidder at the Insurance Company's sale; that neither C. W. E. nor R. W. E. Hirst knew prior to August 5, 1935, of said alleged agreements. Other findings were made with respect to the value of improvements and the amounts of taxes and insurance paid by the Hirsts.

On March 25, 1939, the District Court extended the term until June 25, 1939, in order to complete the trial of the cause.

After verdict the Hirsts filed motion for judgment in their favor. Plaintiffs below likewise filed motion for judgment non obstante veredicto. The District Judge entered an order denying both motions, and upon his own motion entered an order declaring a mistrial and setting the verdict of the jury aside.

Judge Sutton filed an answer herein setting forth his reasons for not entering judgment as being: that he was of the opinion that a fair and just judgment could not be written, the jury having found that the representatives of the Insurance Company had made the agreement alleged and such finding being upon abundant evidence; that while plaintiffs below pleaded and sought to recover reasonable rental value, they furnished no proof sufficient to support the jury finding upon that issue, and that there was likewise a failure of proof upon the part of Hirst Brothers with respect to improvements made in good faith; and that as to the defense of innocent purchaser interposed by Hirst Brothers, it appeared upon hearing of the motions for judgment that the deed under which the Hirsts held was a naked quitclaim deed and would not support the defense of innocent purchaser.

Respondents Warnock, S. C. Johnson and Lurline Johnson, in their response to the prayer for mandamus pray for writ of mandamus requiring Judge Sutton to enter judgment in their favor vesting in them title to and possession of the real estate involved and for the value of the use thereof as found by the jury, or, in the alternative, for judgment for the real estate...