Bain v. Coats

• Decision Date: 19 January 1921
• Docket Number: (No. 6476.)
• Citation: 228 S.W. 571
• Parties: BAIN et al. v. COATS et al.
• Court: Texas Court of Appeals

228 S.W. 571

BAIN et al. v. COATS et al.

(No. 6476.)

Court of Civil Appeals of Texas, San Antonio.

January 19, 1921.

Rehearing Denied March 9, 1921.

Appeal from District Court, Karnes County; Covey C. Thomas, Judge.

Suit by Mrs. R. H. Coats and others against L. E. Bain and others. From judgment for plaintiffs, defendants appeal. Reversed and rendered.

A. J. Parker and Lewright & Lewright, all of San Antonio, for appellants.

J. B. Dibrell, of Seguin, Bell & Brown, of Karnes City, and L. H. Browne, A. J. Bell, and J. D. Dodson, all of San Antonio, for appellees.

COBBS, J.

W. G. Butler, Jr., died on the 20th day of November, 1913, in Karnes county, leaving a large estate consisting of real and personal property. He left a will in which he made Mrs. Ira Butler, his surviving wife, now Mrs. R. H. Coats, appellee, sole devisee. L. E. Bain and A. J. Parker were made executors, and were required to give bond and make report of their actions to the probate court of Karnes county.

A temporary administration was taken out and closed on the 16th day of February, 1914, at which time the will was entered of probate, and thereupon L. E. Bain and A. J. Parker qualified as executors and gave bond, with appellants J. L. Bain, T. G. Butler, and E. C. Seale as sureties. On the 26th day of May, 1917, the executors secured an order of the probate court approving their final account as such, discharging them and their said bondsmen from further liability. On the 17th day of July, 1919, appellees filed a proceeding in said county probate court against appellants, individually and as executors of said estate, and against said sureties as such, to set aside and vacate the order of court.

On the same day appellees instituted two suits in the district court, one against appellants A. J. Parker and L. E. Bain, individually and as executors of said estate, and against J. L. Bain, T. G. Butler, and E. C. Seale, as sureties on their said bond, numbered 2187, styled "Mrs. Ira Coats et al. v. A. J. Parker et al.," to recover $100,000 damages for waste and misappropriation of the property of the estate. Another suit was brought in district court against A. J. Parker and L. E. Bain, individually and as executors of said estate, numbered on said docket No. 2188, styled "Mrs. Ira Coats et al. v. J. L. Bain et al.," to cancel and set aside a deed and conveyance executed by A. J. Parker and L. E. Bain as executors and signed by Mrs. R. H. Coats to J. L. Bain, appellant, conveying to him 3,018 acres of land, and recover the unsold portion thereof, amounting to 1,066.2 acres. The ground upon which the recovery was sought for the unsold portion was based upon allegations of bad faith and fraud and want of duty in the execution of their trust as such executors, conspiring with J. L. Bain to cheat, defraud, and swindle appellees and said estate.

The proceeding in the county probate court was heard on the 6th day of March, 1920, when an order was entered setting aside the previous order approving report of the executors and discharging them and their bondsmen from further liability; and thereupon, on the 9th day of April, 1920, appellants filed in the said district court petition for certiorari in cause No. 2225, "Estate of W. G. Butler, Jr., Dec'd." styled "Mrs. R. H. Coats et al. v. L. E. Bain et al.," in which A. J. Parker and L. E. Bain were joined as executors and as individuals, and J. L. Bain, T. G. Butler, and E. C. Seale as sureties upon the bond of said executors, which was granted. Hence by which proceedings all of said causes appeared upon the docket for trial and disposition in the district court of Karnes county.

Upon this state of the docket, on June 10, 1920, appellees timely filed in said court motion to consolidate cause No. 2225, brought up from county court by certiorari, with causes Nos. 2187 and 2188, alleging in cause No. 2225 appellees were seeking to enforce a complete accounting of appellants A. J. Parker and L. E. Bain as executors of said estate, praying judgment against them and their sureties, J. L. Bain, T. G. Butler, and E. C. Seale, for such sums as might be found due on an accounting. The court granted the order of consolidation of causes Nos. 2225, 2187, and 2188.

Upon motion of appellants, appellees were required to replead and recast said three consolidated causes into one, which was accordingly done by their fourth amended original bill of review and repleader. In reply to which appellants filed their third amended original answer, excepting thereto, and with full answer on the merits, upon which two pleadings the cause went to trial. The case was tried with a jury upon special issues submitted by the court. Upon their verdict the court entered a judgment in favor of appellees. The judgment, among other things, substantially, on the issue in question, was:

"(1) The court is of the opinion, and considers and so adjudges, that plaintiffs should not be awarded, and they are hereby denied, judgment for any portion of the profits realized from the sale of land contained in the 3,018 acres and for the portion of said land yet unsold in the hands of J. L. Bain, aggregating 878 89/100 acres, but that upon the finding of the jury that the contract and deed executed and delivered to the defendant J. L. Bain, at $18 per acre, was fraudulent, and in that event the court is of the opinion that the contract dated February 15, 1916, at $22 per acre, and the notes based thereon, aggregating $60,396, are in full force and effect, and fix or determine the rights existing between plaintiffs and defendants as to recovery predicated upon the 3,018 acres of land deeded to J. L. Bain, and the court finding that the vendor's lien notes executed by J. L. Bain were secured by vendor's lien on 3,018 acres of land sold to J. L. Bain by L. E. Bain and A. J. Parker, executors of the estate of W. G. Butler, Jr., deceased, and Mrs. Ira Butler, now Mrs. R. H. Coats, on the 19th day of February, 1917, and recorded in volume 53, on page 778, of the Deed Records of Karnes County, Texas, and which is described by metes and bounds as follows, to wit, * * * and it further appearing to the court that the defendant J. L. Bain wholly made default in payment of both principal and interest due on said notes, on February 15, 1917, and but for the existence of the contract found by the jury to be fraudulent the executors would have declared said entire amount, principal and interest and attorneys' fees, due on said date, and that no payment was credited to said estate until April 5, 1917, on which day the sum of $48,324 was credited to said estate, and that on said date the total amount due and then payable on said notes, principal, interest, and attorneys' fees, was $71,732.49, and the court, being of the further opinion that said credit should be applied on said date to said sum due, so orders, and the court considers and so finds, that plaintiffs are entitled to, and awards them, judgment against the defendant J. L. Bain, individually, for the sum of $28,887.43, with interest from this date until paid at the rate of 7 per cent. per annum, and for foreclosure of the vendor's lien as above described to secure the payment thereof, for order of sale, writ of possession, and for execution for any deficiency which may remain after sale. The court is of the further opinion, and so considers, adjudges, and decrees, that the plaintiffs should be and they are hereby denied cancellation of the deed of trust executed and delivered to L. E. Bain, February 15, 1917, but the same is in all things inferior and subordinate to the vendor's lien found to exist in favor of plaintiffs above described and foreclosed. * * *"

The same judgment was also awarded against the other appellants as principals and sureties, from which judgment all appellants have appealed and assigned errors. Likewise appellees have cross-assigned errors.

J. L. Bain's first assignment contends the court erred in consolidating cause No. 2225 against L. E. Bain et al. with No. 2188 against J. L. Bain et al. over his objection, and his proposition is because said cause of action involves and presents wholly separate and distinct issues of fact and law, and there is no identity of parties defendant therein.

Of course so long as article 2182, R. S. (Vernon's Sayles') allows causes of action to be joined where several suits are pending in the same court by the same plaintiffs against several defendants involving similar issues, it is within the discretion of the court to consolidate. Therefore, whether suits should be consolidated or not is seen to be largely in the discretion of the trial court. Young v. Gray, 65 Tex. 99; Bolden v. Hughes, 48 Tex. Civ. App. 496, 107 S. W. 92. That discretion will not be reviewed unless there has been a manifest injury. Brasfield v. Young, 153 S. W. 180; W. U. Tel. Co. v. Morrow, 208 S. W. 689; Marshall v. Magness, 211 S. W. 541; Love v. Keowne, 58 Tex. 191.

The parties in the county and district courts are the same executors and sureties as here. The proceeding in the county court was to set aside a final judgment obtained there dealing with the same property. It could not be collaterally attacked, and before an accounting could be had appellee was required to cause it to be set aside and opened up. In the ultimate result of that judgment the sureties would be affected. In the suit to set aside, the deed alleged to be fraudulently made was of lands belonging to said estate, alleged fraudulently conveyed to J. L. Bain, a surety on the bond of the executors, L. E. Bain and A. J. Parker, in which the appellee was alleged to have been fraudulently induced to join; it was against the executors as such and individually against J. L. Bain, a surety on the bond. One was to recover damages for the waste and misapplication of the property of said estate against said executors as such and individually against said three sureties, J. L. Bain, T. G. Butler, and E. C....