Berry v. Hindman

• Citation: 129 S.W. 1181
• Parties: BERRY et al. v. HINDMAN et al.
• Decision Date: 28 April 1910
• Court: Court of Appeals of Texas

129 S.W. 1181

BERRY et al. v. HINDMAN et al.

Court of Civil Appeals of Texas.

April 28, 1910.

On Motion for Rehearing, May 26, 1910.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Harrison County; W. C. Buford, Judge.

Action by C. J. Hindman and others against J. H. Berry, C. T. Duke, and others. From a judgment for plaintiffs, defendants named appeal. Affirmed in part, and reversed and rendered in part.

Young & Abney, for appellant J. H. Berry. W. T. Armistead and F. H. Prendergast, for appellant C. T. Duke. Jones & Bibb, for appellees.

HODGES, J.

The appellees Mrs. C. J. Hindman, Mary Berry, Spire Berry, and Louise Berry are the children, heirs, and devisees of Mrs. Frances Berry, deceased, and J. H. Berry. They bring this suit against J. H. Berry, their father, to cancel a deed from him to C. T. Duke and to remove cloud from their title to certain lands described in the petition, which they claim under a will from their mother. R. B. and A. D. Eglin, J. K. Foster, L. E. Tignor, and J. H. Jarrett were joined as parties plaintiff because of a claim to an interest in the timber on the land, which will hereafter be referred to. C. T. Duke, W. H. Bolding, and J. H. Bemis were also made parties defendant with Berry for reasons which will be disclosed in the statement of the case.

J. H. Berry and Frances Berry were married some time prior to 1880. After her marriage with Berry, the latter incurred a community indebtedness of $7,085 to J. M. Bemis. In June, 1901, Mrs. Berry, joined by her husband, executed a deed of trust on her land for the purpose of securing that debt. In 1902 she died at Ft. Gibson, Indian Territory, leaving this debt unpaid. She left a will, the material portions of which are as follows: "I will that all my just debts be paid out of my estate in the State of Texas. I will, bequeath, give and devise all the rest, residue and remainder of my estate, real and personal, after my debts are paid, except as hereinafter provided, to my four children (naming them). I will, give and bequeath unto my husband, J. H. Berry, the sum of five dollars. I will that my husband, J. H. Berry, shall be the executor of my estate without bond, and that he shall have power to do all things necessary in settling up the same as provided in this my last will and testament." This will was probated in Marion county, Tex., and Berry qualified as executor by taking the required oath. In 1905 Bemis brought suit in the district court of Marion county against Berry individually and as the independent executor of his wife's will, and obtained a judgment for the amount of his debt and a decree foreclosing his lien on the land covered by the deed of trust. This judgment was never certified to the county court where the administration was pending. In May, 1907, the land was offered for sale under this decree, but no sale appears to have been made; Bemis agreeing to grant Berry further indulgence. In the fall of that year Bemis again insisted upon the payment of his debt, which then amounted to over $10,000. Berry, being without means to pay the same, made an arrangement with appellant C. T. Duke for the money, which arrangement is best explained by the following written agreement entered into by them:

"Contract and agreement made this the 4th day of December, A. D. 1907, at Jefferson, Tex., in Marion county, by and between J. H. Berry individually and as the independent executor of the estate of his wife, Mrs. Frances B. Berry, deceased, and C. T. Duke: (1) A perfect title and deed of conveyance shall be executed by said estate and Mrs. Berry's heirs, if necessary, to the land and timber known as the Haggerty Place in Harrison county, Tex., consisting of about 4,480 acres of land; same being 400 acres of the Wiley Ingram survey, and 3,938 acres of the W. H. Payne survey, and both of said surveys being situated in Harrison county, Tex. (2) The consideration therefor shall be ten thousand five and twenty-eight dollars, and the same to be applied to the payment of the trust deed and judgment debt in favor of J. M. Bemis of Warren, Pa., and said money is to be applied and both parties are to see that it is so applied, and the money and deed to be placed in escrow until this is done at the Commercial National Bank of Jefferson, Tex.; it being necessary to so sell said land and timber to pay this debt which was a liability of the deceased, Mrs. Frances Bernard Berry, at the time of her death. (3) Mr. C. T. Duke is to then deed the lands to J. H. Berry for the difference between the ten thousand five hundred and twenty-eight dollars and five thousand dollars and five hundred dollars commissions reserving the timber ten inches at the stump and over, within eight years from the date of this instrument, except the old field pine and oak timber inside of the 1,200-acre inclosure. This amount of money is to be made in two vendor's lien notes of equal amounts each, payable in one or two years after date with 10 per cent. interest from date and 10 per cent. attorney's fees if sued upon or placed in an attorney's hands for collection, and the default in the payment of either note and the accrued interest shall mature both notes at the option of C. T. Duke or the holder thereof, and said notes shall be drawn payable at Jefferson, Marion county, Tex."

In pursuance of this agreement, on the 9th day of December, 1907, Berry, purporting to act as the independent executor of the will of his deceased wife and individually, conveyed the land described in the plaintiffs' petition to Duke. On the same date Duke made a conveyance of the land back to Berry, reserving the timber above 10 inches in diameter and accepting as the consideration for this transfer Berry's two notes for the aggregate amount of $6,078 secured by a vendor's lien on the land. Duke also on the same date took a transfer to himself of the Bemis judgment. Nine thousand dollars of the money used by Duke in taking up this judgment was borrowed by him from a Miss Betty R. Bolding. After the land was conveyed by Duke to Berry, the vendor's lien notes given by the latter were transferred by Duke to Miss Bolding as security for the money advanced by her. She also obtained from Duke a conveyance of a half interest in the timber reserved upon the land conveyed to Berry. Subsequently, and before this suit, Duke sold the timber to R. B. and A. D. Eglin, who later sold a portion of it to the other parties joined as plaintiffs in this suit. The consideration received by Duke for that sale was $10,000, half in cash and the balance in one note.

At the time of Mrs. Berry's death, her children were all minors ranging in age from 13 to 20 years. Those of them who testified upon the trial disclaimed any knowledge of these dealings between Berry and Duke with reference to their land till in the spring of 1909. This suit was instituted April 12, 1909. The plaintiffs in their original petition charge in substance that Berry and Duke entered into a conspiracy to fraudulently deprive the children of Mrs. Berry of the land involved in suit, and to enable Berry to acquire title to the land in his own right; that Berry was not the independent executor of the will of Mrs. Berry, and had no authority to make any conveyance of the land to Duke. It is also claimed that the sale to Duke was for a grossly inadequate sum. It is further alleged that Duke, as the vendee of Berry, had sold the timber to R. B. and A. D. Eglin; that they in turn had sold a portion of it to Foster, Tignor, and Jarrett; that the plaintiffs have agreed among themselves that inasmuch as Eglin, Tignor, and Jarrett had paid their money for the timber, and paid a reasonable price therefor, the children, plaintiffs, would acquiesce in the sale of the timber and require C. T. Duke to credit the price he received therefor upon the original Bemis mortgage. There was no effort to defeat the Bemis debt, and in all the pleadings it was recognized as a valid claim against the property involved. Berry answered claiming to be a one-half owner of the land, saying that his wife held the land in trust for him. Duke answered claiming that the will of Mrs. Berry constituted her husband her independent executor and authorized him to sell the property; that he (Duke) purchased the property from Berry as such independent executor of the will of his deceased wife; and claimed that all of the transfers were valid and regular and not in fraud of the rights of the children. By a supplemental petition the children of Mrs. Berry set up that the Bemis debt was a community debt of Berry and his deceased wife, and that Berry was primarily liable therefor and should have paid the same out of his own property, and that, inasmuch as their property had been used in paying the debt to the extent of the value of the timber sold by Duke, they were entitled to recover a personal judgment against Berry for the amount of the debt, and asked for judgment to that effect. In what he styles a "Trial Amendment," Berry interposes the objection to any recovery by the plaintiffs because of the pendency of an administration upon the estate of Mrs. Berry in the county court of Marion county. He alleges that the estate is indebted to various parties as well as to him.

The suit as to Miss Betty Bolding was dismissed by the plaintiffs in the trial.

The cause was tried before a jury and submitted upon special issues. In the answers returned the jury found substantially the following facts: That the actions of Berry and Duke in their transfers of the land and timber between themselves amounted to an attempt to defraud the children of Mrs. Berry and deprive them of the property; that the market value of the land with the timber at the time of Berry's deed to Duke was $36,000; that the reasonable market value of the timber at the same time, and at the time Duke sold to Eglin Bros., was $14,000; that the reasonable market value of the land without the timber on the date of...