Barrera v. Gannaway

• Decision Date: 09 June 1937
• Docket Number: No. 1675-6843.,1675-6843.
• Citation: 105 S.W.2d 876
• Parties: BARRERA et al. v. GANNAWAY.
• Court: Texas Supreme Court

Page 876

105 S.W.2d 876

BARRERA et al. v. GANNAWAY.

No. 1675-6843.

Commission of Appeals of Texas, Section B.

June 9, 1937.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action by J. G. Barrera, as administrator of the estate of J. R. Alamia, and of the estate of Oliver V. Alamia, deceased, and as guardian and as next friend of Alfonso Alamia, and others against L. A. Gannaway. To review a judgment of the Court of Civil Appeals [74 S.W.(2d) 717] reversing a judgment for plaintiff, plaintiffs bring error.

Judgment of Court of Civil Appeals reversed and judgment of trial court affirmed.

J. G. Foster, of Raymondville, and A. G. Haigh and Brown & Bader, all of Edinburg, for plaintiffs in error.

McDaniel, Fulton & Thrasher and E. A. McDaniel, all of McAllen, and Montgomery, Hall & Taylor, of Edinburg, for defendant in error.

MARTIN, Commissioner.

J. R. Alamia and wife owned 2,400 acres of land in Hidalgo county. The former died in December, 1924, and the latter in 1927. Both died intestate, leaving four minor children. A. Y. Baker qualified as administrator of the respective estates of Alamia and wife upon the death of each, and served until his death on November 1, 1930. He also qualified and acted as guardian of the estate of said minors. J. G. Barrera succeeded Baker as such administrator and guardian, qualifying February 4, 1931. During the incumbency in office of Baker as administrator and guardian, defendant in error, Gannaway, entered upon the aforesaid 2,400 acres of land and removed therefrom a large amount of caliche ore and converted same to his own use. On March 18, 1932, Barrera, as administrator, guardian and next friend of said heirs, filed suit against Gannaway for the value of said caliche ore in the sum of $43,500. Gannaway's answer consisted of a plea in abatement, general and special exceptions, a general denial, and a special plea setting up the two-year statute of limitation. To this plea of limitation plaintiffs in error, in a supplemental petition, alleged in part:

"Plaintiffs represent that defendant, L. A. Gannaway and A. Y. Baker, * * * entered into a conspiracy to defraud said estates and minors and plaintiffs herein on or about the time said Gannaway began to extract and convert the caliche involved in this suit to his own use and benefit and in pursuance of said conspiracy the said Gannaway committed the trespasses, conversions, wrongs and injuries complained of. * * *

"Plaintiffs further say that the facts alleged in plaintiffs' first amended original petition and herein constitute a fraud against these plaintiffs on the part of L. A. Gannaway in the wrongful taking of said caliche by him and said fraud was not discovered by these plaintiffs, or any of them, until March 18, 1932."

They further pleaded the minority of said heirs in response to said plea of limitation.

Trial was to the court, which rendered judgment for said heirs, but denied any recovery to Barrera, as administrator and guardian.

The Court of Civil Appeals in substance held (1) that the right to sue was solely in the administrator, and (2) that limitation had barred such action by the administrator.

We agree with the first, but disagree with the second of said holdings.

The authorities are in some confusion. Defendant in error relies upon the case of Rindge v. Oliphint, 62 Tex. 682. That case is distinguishable from the present one. Here, to avoid the bar of limitation, in due order of pleading, plaintiffs in error alleged fraud and collusion, and pleaded the minority of said heirs. The trial court impliedly found with such latter plea. We are not able to agree with defendant in error that there is not a scintilla of evidence to sustain such finding.

True, there are only circumstances to support the inference of fraud and collusion, but what other kind of evidence could be expected in support of such a charge?

Caliche ore in place is real estate. Even Alamia in his lifetime could not have validly conveyed title to it by parol. Baker, as administrator, made no application to the probate court to sell such ore, nor do the records of such court show any report of a sale. The probate records are bare of any reference to such matters. An audit of Baker's books revealed no payment by Gannaway. It is incredible to the writer that trucks could have swarmed over his wards' land for months, hauling away thousands of tons of ore, without Baker's knowledge. The inference is we think a fair one that he knew it, and acquiesced in it. In so doing, he was acting adversely to the interest of these minor heirs and of the estate. Nobody heard any fraudulent agreement made between them, but the record contains facts and circumstances entirely inconsistent with the existence of fair and open dealing and which support an inference of the opposite character. About two years went by without any effort on the part of Baker, so far as the probate or his own records show, to protect the estate, or to collect that which had been unlawfully taken from it. Baker died. Gannaway knew whether or not this was a collusive transaction. The facts pointed an accusing finger towards him. They involved in some measure moral turpitude, and called for an explanation, within his power to make. He stood silent. Neither he nor any witness for him at the trial attempted to explain the inculpatory facts proven against him. Of course, this did not supply any omissions in the testimony which it was necessary for plaintiffs in error to produce, but it did strengthen the probative force of the facts which tended to prove their charge. It has even been said that this "of itself is clothed with a certain probative force." Southern Pac. Co. v. Ulmer (Tex.Civ.App.) 282 S.W. 305, 307. See generally, 17 Tex. Jur. pp. 306 and 307. We do not regard the circumstances as such as to equally support opposite inferences. We recognize that in such case the evidence would be insufficient.

If our conclusion as to the sufficiency of the evidence just discussed be correct, the law is plain. In such case limitation could not run during Baker's tenure of office and while the minority of the heirs continued. Less than two years elapsed from his...