Cassaday v. Frankland
| Decision Date | 10 December 1881 |
| Docket Number | Case No. 4409. |
| Citation | 55 Tex. 452 |
| Parties | MARY B. CASSADAY v. C. C. FRANKLAND. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from McLennan. Tried below before the Hon. L. C. Alexander.
This suit was instituted April 23, 1878, by Frankland against Cassaday, for the recovery of two tracts of land in McLennan county, in trespass to try title. The defendant pleaded not guilty, and special pleas which it does not become material to notice. The title of plaintiff and defendant is traced to one R. P. Jones.
Jones being indebted in a large amount to one John Barnes, of London, conveyed to Frankland & Terry certain lands and other property (amongst which is the land sued for), in trust to sell and pay the debt to Barnes. On the death of Jones, a suit was instituted in Brazoria district court against his representatives and the trustees, and in that suit a decree was rendered reforming the trust deed and directing the execution of the trust according to the terms of the decree. Its provisions are very full in regard to the powers and procedure of the trustees. They are directed to sell the property after proper notice at public sale, and the terms prescribed are the payment of ten per cent. cash by the purchasers and the balance in annual installments at one, two and three years, with interest. It proceeds:
1. The purchasers to execute their promissory notes with good personal security for the respective amounts of said installments, payable to the order of A. Lanfear, at the Commercial & Agricultural Bank at Galveston, and secured by mortgage to be retained on the property purchased.
2. The assignees shall execute deeds to the purchasers, which deeds shall be valid in law to convey to said purchasers all the right, title, interest and claim of the said estate of the said R. P. Jones and of the defendants (these were C. C. Frankland, Clinton Terry, Eleanor P. Frankland and Ambrose Lanfear), in and to the said lands and slaves and other property. But the sales shall be without warranty and the title at the risk of the purchaser, and defects or failure of title shall be no defense or bar to the payment of the notes for the purchase money.
3. It is further stipulated, that at these sales by the trustees Barnes or ““his attorney of record herein” may bid for property and direct conveyances to be made, and credit the bids upon plaintiff's debt, and the cash proceeds of sale shall be paid at once to plaintiff or his attorneys.
4. That the plaintiff or his attorneys, etc., shall have the right to elect and take any of the notes and mortgages received, and credit the amount on the plaintiff's debt.
5. The notes and mortgages which he shall not so elect to take and receive shall remain subject to the control of the assignees, who shall collect the same, etc., pay over to said A. Lanfear at Galveston, and the notes and mortgages shall not operate as any credit or payment of the amounts to plaintiff, nor impair his claim or lien, until collection and payment of the proceeds to said A. Lanfear (except in cases of purchase or election to take notes as expressed).
6. That if the trustees fail to make and complete the sale of the property, as specified, “then the power and authority of said assignees to make any further sales or disposition of any property shall cease; and on affidavit made by any one of the attorneys of record of the plaintiff of such failure, the clerk of the court should issue an order of sale, directed to the sheriff of the proper county, commanding him to sell the property.”
Under a sale made by the assignees in pursuance of this decree, John A. Wharton purchased the land in controversy on March 6, 1855. Frankland & Terry executed to him a conveyance for the land. In the same document is contained a mortgage from Wharton to A. Lanfear, to secure the notes given for the residue of the purchase money of the land.
The defendant claims through conveyances from the heirs of Wharton.
It appears that John A. Wharton died in 1865. He is represented as being a wealthy man until the close of the war. He was a partner in the practice of the law with Clinton Terry, one of the assignees. Terry died in 1862. John B. Jones, Esq., of Galveston, was the agent and attorney of record of Barnes. He died in 1874.
After the death of Jones, Coryell, a witness for the plaintiff, testified that on examination he found among Jones' papers relating to the Barnes affairs, in 1876, three notes of John A. Wharton, dated about the 6th of March, each for $190, and payable to A. Lanfear. The notes, he says, were burned in a fire at Galveston in June, 1877.
Frankland, the plaintiff, testified by deposition that the assignee “paid over to John B. Jones, the agent and attorney of John Barnes, all cash, and also for collection all the notes received for the lands.” An exhibit of sales made by the assignees was produced, to which is appended a “summary statement” as follows:
There was conflicting testimony as to whether Wharton and Terry had claims against the trust estate for fees. The “statement” shows that Frankland & Terry retained Wharton's notes. Holmes testified to having found them among the Barnes papers.
Herring & Kelley, for appellant.
Jennings & Dyer, for appellee.
I. The presumption of payment of the notes of Wharton, given for the land in controversy, is repelled by the evidence of the situation of the parties, and the other circumstances given in evidence on the trial below, to show that the debt is still due.
II. The presumption of payment does not arise in a case like this by lapse of time, because the legal title remained in the vendors, the assignees, subject to be defeated only by an actual payment of the purchase money.
III. Upon the death of R. P. Jones, the power of the trustees under the assignment was revoked. The assignment was made October 23, 1853. Richard P. Jones died afterwards, and during the same year, and before the execution of the trust. Robertson v. Paul, 16 Tex., 472;Buchanan, Adm'r., et al. v. Monroe et al., 22 Tex., 537;Webb v. Mallard, 27 Tex., 80.
IV. The decree of the district court of Brazoria county, enforcing the trust under the said assignment, vested the power to act in Terry & Frankland, the original assignees, and made their powers joint and several.
V. The deed of Charles C. Frankland and Clinton Terry to John A. Wharton did not divest the legal title of the trustees, nor invest the same in Wharton. Dunlap v. Wright, 11 Tex., 597;Baker v. Ramsey, 27 Tex., 52;Peters v. Clements, 46 Tex., 115;Roosevelt v. Davis, 49 Tex., 463;Burgess v. Millican, 50 Tex., 401.
VI. The notes, being made payable to Ambrose Lanfear, did not divest the title of the trustees to...
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...its proceeds applied to the satisfaction of the purchase-money notes held by him * * *." Announcing this same rule of law are: Cassaday v. Frankland, 55 Tex. 452; Scott v. Watson, Tex.Civ.App., 167 S.W. 268; Smith v. Tipps, Tex.Com.App., 229 S.W. 307; Pope v. Witherspoon, Tex.Civ.App., 231 ......
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