Atkins v. Carson

• Decision Date: 30 April 1971
• Docket Number: No. 14851,14851
• Citation: 467 S.W.2d 495
• Parties: Rose Burton ATKINS et al., Appellants, v. Mary T. CARSON, Appellee.
• Court: Texas Court of Appeals

Page 495

467 S.W.2d 495

Rose Burton ATKINS et al., Appellants, v. Mary T. CARSON, Appellee.

No. 14851.

Court of Civil Appeals of Texas San Antonio.

April 30, 1971.

Rehearing Denied May 26, 1971.

Sedberry & Williams, Wilson, Logan, Lear & Massey, San Angelo, for appellants.

Shelby H. Blaydes, Fort Stockton, C. H. Gilmer, Rock Springs, for appellee.

CADENA, Justice.

Plaintiffs, Rose Burton Atkins, individually and as surviving wife of George E. Atkins, deceased, and the independent exceutors of the estate of George E. Atkins, Arthur Clinton Atkins, George E. Atkins, Jr., and Dorothy Sue Merriweather Atkins, who also appear in their individual capacities, appeal from a summary judgment rendered in favor of defendant, Mary T. Carson, in a suit in which plaintiffs sought to establish an interest in land situated in Pecos County and to compel an accounting of the affairs of an alleged partnership between George E. Atkins, deceased, and Page E. Carson, deceased husband of defendant.

The suit was originally filed on February 9, 1960, naming Page E. Carson and Mary T. Carson as defendants. On October 27, 1960, the Carsons filed a motion for summary judgment which was denied on December 17, 1960. Page Carson subsequently died and on December 5, 1968, the trial court entered an order eliminating Page Carson as a party to the suit. On January 9, 1969, defendant, May Carson, filed a 'Motion for Summary Judgment on Title to Real Estate,' and it is from the action of the trial court granting this motion and rendering judgment that plaintiffs take nothing that this appeal is On January 9, 1969, defendant, Mary Carson,

Plaintiffs' Pleadings

While the first count of plaintiffs' pleadings are cast in the form of an action in trespass to try title, their claim of ownership of a tract of land consisting of 1239.6 acres known as the Eaker Place rests on the theory of a resulting purchase money trust and on the existence of a partnership between plaintiffs' decedent and Page Carson. According to plaintiffs' third amended original petition:

1. About November 1, 1948, Atkins and Carson orally agreed that they would purchase the Eaker place together for a total consideration of $33,080.00, which included the assumption of a lien in the approximate amount of $12,000.00. Carson was to apply for a loan in the amount of $24,000.00 payment of which would be guaranteed by Atkins. Title to the land was to be taken in the name of Carson in order to facilitate his obtaining the loan. Atkins deposited to the account of Carson the sum of $21,080.00, which Carson used in purchasing the land from the Eakers . Atkins arranged a meeting between Carson and Doak, a loan agent with whom Atkins had done business in the past, and Carson made application for the loan. The agreement was to the effect that if the loan was obtained, $12,000.00 was to be used for the purpose of discharging the lien on the Eaker land, and $12,000.00 was to be paid to Atkins.

2. Carson was to sell certain land owned by him for approximately $10,000.00. This money was to be invested by Carson in the venture, matching the approximately $10,000.00 which Atkins would still have invested in the venture after he had been paid the $12,000.00 from the proceeds of the loan. ¹ The $10,000.00 which Carson was to invest in the venture was to be used in the farming and livestock operation which Atkins and Carson would undertake together. If Carson was unable to sell his land, but the $24,000.00 loan was obtained, then Carson could qualify for his one-half interest in the land and the partnership assets by giving all of the profits from the operation to Atkins until Atkins received an amount sufficient to equalize the investments of Atkins and Carson. Carson was to live on the land and operate the farming and livestock business as a partnership.

3. In the alternative, plaintiffs alleged a partnership agreement between Atkins and Carson whereby Atkins made an initial investment of $23,080.00 and a subsequent investment of $12,644.51, while Carson, who invested nothing, managed the farming and livestock operation. The Eaker Place was acquired as partnership property. Under this theory, plaintiffs claimed an interest in the partnership and asked for an accounting.

4. Finally, plaintiffs sought a dissolution of the partnership, appointment of a receiver, and a distribution of the partnership assets.

Defendant's Pleadings

In addition to a plea of not guilty and a general denial, defendant interposed specific denials of the material allegations contained in plaintiffs' pleadings. According to defendant's pleadings:

1. Carson was not acting on behalf of Atkins in purchasing the Eaker land. While Carson obtained from Atkins the money required to purchase the equity of the Eakers in the land, the money thus advanced by Atkins was a loan which Carson fully repaid. No partnership ever existed between Atkins and Carson.

2. On or about November 5, 1948, the Eakers agreed in writing to sell the land in question to Carson for a cash consideration of $21,080.00 and the assumption by Carson of the outstanding mortgage indebtedness, approximately $12,000.00 on the land. Under the contract, Carson was to obtain a loan on or before January 1, 1949, for the purpose of paying the cash consideration. On the same date, November 5, 1948, the Eakers executed a deed conveying the land to Carson and also executed a bill of sale transferring certain personal property to Carson. The contract of sale, deed and bill of sale were placed in escrow with a bank with directions to deliver the instruments to Carson, upon deposit by Carson, within the period expiring January 1, 1949, of $21,080.00 to the account of the Eakers .

3. Shortly thereafter, the Carsons moved upon the land with the consent of the Eakers. Although Carson attempted to secure a loan, he was unable to do so prior to January 1, 1949, and on February 11, by written agreement between Carson and the Eakers, the time for performance by Carson was extended until April 11, 1949. In February, Carson obtained a loan of $8,000.00 from Atkins, and on or about March 17, 1949, Carson obtained an additional loan of $15,080.00 from Atkins. This money was paid to the Eakers by Carson and on March 18, 1949, the escrow agent delivered the deed, executed by the Eakers on November 5, 1949, conveying the land in question to Carson.

4. Carson subsequently repaid all the money which he had borrowed from Atkins.

5. Plaintiffs' claims were barred by the ten-year, the five-year, the four-year and the two-year statutes of limitations (Articles 5510, 5509, 5527 and 5526, Vernon's Annotated Civil Statutes). Defendant also contended that plaintiffs were guilty of laches.

The Summary Judgment Record

Defendant's sworn motion for summary judgment prayed that summary judgment be rendered awarding her title and possession of the land in question. The motion alleged that defendant owned the fee simple title to the land, that no genuine issue of material fact concerning her title to the land existed, and that plaintiffs had alleged no facts which, if proved, would establish any interest in the land in favor of plaintiffs. In support of this motion, defendant adopted the motion for summary judgment previously filed by defendant and her deceased husband, Page Carson, on October 27, 1960, and the affidavits and exhibits attaced thereto.

Plaintiffs' reply to the defendant's motion for summary judgment was supported by:

1. The affidavit of one of the Eakers, who conveyed the land to Carson, to the effect Atkins was present from the very beginning of the negotiations between Carson and the Eakers.

2. The affidavit of Clinston Holt to the effect that Carson had admitted that Atkins was the owner of at least a one-half interest in the land.

3. Certified copies of partnership tax returns filed and signed by Page Carson on behalf of the partnership of Atkins & Carson, disclosing that Atkins owned a one-half interest in the partnership. In such tax returns Carson claimed as deductions, on behalf of the partnership, depreciation on improvements located on the land in question.

4. Affidavit of C. L. Eaker stting that possession of the land in question was not delivered to Carson until after February 11, 1949.

5. Excerpts from the deposition of J. W. Doak, which deposition was on file among the papers of the case. According to the Doak deposition:

a. In November, 1948, and for two or three months thereafter, he met on several occasions with Atkins and Carson at one of these meetings, it was said that Atkins and Carson were thinking of 'buying a place and form a partnership.' There was talk about securing a loan. Doak pointed out that he was working on a loan for Atkins individually, and that he thought it unwise to begin negotiations on an additional loan for a partnership of which Atkins was a member.

b. No loan application was made at that time. Subsequently, at another meeting which Doak described as taking place in November, 1948, 'they' decided to make an application for a loan. Doak repeated that he did not want to take another loan application on a partnership. Atkins then said, 'Well, you take an application for Page (Carson) and I will be a silent partner.' Doak mentioned that there was 'no land to put in the application' for the loan, and that it was necessary that the application show 'a contract or a Deed or something to show--the cost of the land.' Atkins said he would 'put some money in the partnership and we will go ahead and purchase the place. You take this application for Mr. Carson.' Atkins stated he would guarantee payment of the loan. Carson stated he would sell some property and place the proceeds into the partnership 'to equalize the partnership,' and that when the loan, in the amount of $24,000.00 was secured, he would repay Atkins and 'Mr. Atkins would equalize his share of the partnership then it would be a 50--50 partnership between Mr. Carson...