Arnold v. Ellis

• Decision Date: 11 January 1899
• Citation: 48 S.W. 883
• Parties: ARNOLD et al. v. ELLIS et al.
• Court: Texas Court of Appeals

48 S.W. 883

ARNOLD et al. v. ELLIS et al.

Court of Civil Appeals of Texas.

January 11, 1899.

Appeal from district court, Bell county.

Action by Beatrice Ellis and others against A. McKenzie, B. I. Arnold, receiver of the Bell County National Bank, and others. Judgment for plaintiffs, and the receiver and certain other defendants appeal. Affirmed in part.

Appellees, Beatrice Ellis, joined pro forma by her husband, E. I. Ellis, and Bessie McKenzie, a minor, suing by her next friend, E. I. Ellis, instituted this suit against A. McKenzie, B. I. Arnold, receiver of the Bell County National Bank, P. M. Kolb, and H. F. Iglehart, for title and possession of lot No. 2 in block No. 9 in the city of Temple, Bell county, Tex. The defendant McKenzie filed no answer, and judgment by default was rendered against him. The defendant Arnold pleaded a general denial and "Not guilty," and specially alleged title in himself as receiver of the Bell County National Bank, the particulars of which it is not necessary to state. The defendants Kolb and Iglehart disclaimed as to all the lot, except the north half thereof, which is described by metes and bounds in their answer, and as to said north half they pleaded a general denial and "Not guilty." There was a jury trial, resulting in a verdict and judgment for the plaintiffs against all the defendants for all the land sued for. The defendants Arnold, Kolb, and Iglehart have appealed.

The testimony submitted by the plaintiffs, by which they claim title to the property in controversy, is as follows:

(1) Deed by W. S. G. Wilson to Beatrice McKenzie for 50 acres of land in the John Hobson survey in Bell county, Tex., dated March 26, 1882, and recorded in the deed records of Bell county, Tex., on 21st of December, 1882. (2) Deed by W. S. G. Wilson to Bessie McKenzie for 50 acres of land in the John Hobson survey in Bell county, Tex., dated March 26, 1882, and recorded in the deed records of Bell county December 21, 1882. (3) Defendants admitted that Beatrice and Bessie took good title under said conveyances to the respective tracts. (4) Bond for title executed by A. McKenzie and wife to J. M. Woodward for the two above-mentioned tracts of land, dated January 2, 1886, and recorded in the deed records of Bell county, Tex., on January 18, 1886. Obligation and consideration as follows: "I, A. McKenzie, and wife, A. E. McKenzie, are held and firmly bound unto J. M. Woodward in the sum of one thousand dollars. The condition of the above obligation is that whereas the above-bound A. McKenzie and wife, A. E. McKenzie, have this day sold to said Woodward, his heirs and assigns, the following described real estate [two tracts described by metes and bounds]. The consideration paid and agreed to be paid for the said land is as follows: $800 in cash, receipt of which is hereby acknowledged; two hundred dollars payable Aug. 1st, 1886; five hundred dollars payable two years from this date, as evidenced by two promissory notes for the above amounts, said notes bearing ten per cent. interest from date. Now, if the said J. M. Woodward shall fully pay said indebtedness according to the legal tenor and effect thereof, the said A. McKenzie and wife, A. E. McKenzie, shall make or cause to be made to the said Woodward, his heirs and assigns and legal representatives, a good and valid title to said premises; then this obligation shall be null and void; otherwise to remain in full force and effect." (5) Deed by Beatrice Ellis and husband, E. I. Ellis, to J. M. Woodward, conveying the 50 acres conveyed by Wilson to said Beatrice, dated January 1, 1892, and recorded in the deed records of Bell county January 27, 1892. Consideration as follows: "One thousand to us paid and secured to be paid by J. M. Woodward as follows: Six hundred dollars in cash, the receipt whereof is hereby acknowledged, and the execution by the said J. M. Woodward of his certain promissory notes of even date herewith, payable to the order of Beatrice Ellis at the First National Bank of Fort Worth, Texas, Jan. 10th, 1892, for the sum of four hundred dollars, with interest from date until paid at the rate of ten per cent. per annum, and providing for attorney's fees of ten per cent. additional on account of principal and interest then due as attorney's fee." (6) Deed from W. R. Branch to A. McKenzie, for lot 2, block 9, of Temple (the property in suit), dated June 20, 1887, and recorded in the deed records of Bell county on November 14, 1887; consideration, "$50 to me in hand paid, and $750 to be paid in fifteen monthly installments of fifty dollars each, as shown by notes," etc.

A. McKenzie, by deposition, testified: "My name is A. McKenzie. Am 48 years old. Beatrice Ellis and Bessie McKenzie are my daughters. I am the same McKenzie who bought lot 2, block 9, of Temple, from W. R. Branch. I paid $800 for the property,— $50 cash, and gave fifteen promissory notes, for $50 each, for the balance, payable monthly. A part of the money paid for said property was my own, and a part belonging to my daughters. I knew J. M. Woodward. He is the same person who bought the land on the Hobson survey from my children. He succeeded me in possession of the property. My children received consideration from Woodward. Of course, I handled the money for them. I sold no land on the Hobson survey to any one, but my daughters, Beatrice and Bessie, did sell 100 acres in this survey to Woodward; the same being all they owned therein. They received $15 per acre. The object my daughters had in selling was to buy a home in Temple, and a part of the money realized in the sale to Woodward was invested in the property in controversy. I do not recollect the exact amount, but the greater part of the purchase money came from the sale of the Hobson land. Bessie is still a minor. As yet there is no settlement between me and my children." Cross-examination: "At the time I purchased the Temple property from Branch, I was a locomotive engineer on the Santa Fé Railway. Held that position about two years. Salary averaged less than $100 per month. I bought the property mostly on time. It is not true that all the purchase money from the lot came from my earnings, but it is true that a part did. I do not know how much, as I kept no record. When I sold Woodward, he paid the consideration, as stated in the bond for title, a part in cash, and the balance afterwards paid according to the bond. The deed to the Temple property was made direct to me. I gave a lien on the south one-half to the Waco Building & Loan Association. The property was in my name, and the children were not mentioned in the lien. It is true that I gave two deeds of trust to Kolb and Iglehart to secure them as sureties on my bond, and I told them the property was mine." Sixteenth cross-interrogatory: "Is it not true that afterwards you deeded said property to them, and did you not represent to them that you owned it, and had the right to sell it? Ans. Yes; the deed to the property was in my name. Yes; I rendered the property for taxation in my name, but not under oath. I took the deed to the Temple property in my own name because I thought it best to do so. I kept the money, I got from Woodward with my other money. I used the money—the money belonging to the Baker minor—to improve the north one-half of the Temple lot. I do not know that my children have made any ratification of my sale on the Hobson land. I have never made a deed or conveyance to Beatrice Ellis and Bessie McKenzie, or to either of them, for said lot."

Harry Billings testified: "I have known A. McKenzie since 1868, and Beatrice Ellis and Bessie McKenzie all their lives. He married about 1875. He then lived at Hearne, and worked for the railroad. He was living in Temple about 1886. I lived with him part of the time in Temple. I know when he sold the two tracts of land on the Hobson survey belonging to his children to J. M. Woodward. He got $1,000 down in cash. I do not know what he did with the $1,000. I know that he paid for the property in controversy out of the money he got from Woodward. He told me he bought the Temple property with it. He never saved much out of his salary, above family expenses. He got $1,000 down when he sold to Woodward." Cross-examination: "I live in Monterey, Mexico. I left there last Friday to come to this trial to testify. Miss Bessie McKenzie came with me. McKenzie lives in Monterey, and is working for the railroad, and I am working under him. McKenzie did not pay my way. He told me the case would be tried to-day, and that they wanted me to come, and I told him I would come, and he gave me a leave of absence. I do not draw pay while I am absent."

John J. Stephens testified: "I know the land on the Hobson survey that McKenzie sold to Woodward. Woodward, I think, paid McKenzie $1,000 at the time of purchase. When Mrs. Ellis and husband conveyed to Woodward, $500 was paid to McKenzie by Woodward."

Mrs. Beatrice Ellis testified: "I am the daughter of A. McKenzie. Was married in the year 1891 to E. I. Ellis. On the ____ day of ____, 1892, I made a deed to J. M. Woodward to 50 acres owned by me in the John Hobson survey. I made a deed because my father asked me to. He told me that, if I would sign the deed, I could have the property in Temple. I did not know that my father had sold the 50 acres to Woodward until the time he asked me to make the deed to Woodward. I made the deed for the purpose of ratifying and making the title good to Woodward. Woodward did not pay me any money, and did not give me any notes. My sister, Bessie, and myself are in possession of the land in controversy in this suit, except the north one-half, which is in the possession of Iglehart and Kolb. My father told me that he gave $800 for the Temple property. He sold the land on the Hobson survey, and bought the Temple property with a part of the proceeds, using (so he told me) $800 of the proceeds for that purpose. B. I. Arnold was put in...