Coleman v. Coleman

• Decision Date: 16 March 1927
• Docket Number: (No. 7722.)
• Citation: 293 S.W. 695
• Parties: COLEMAN et al. v. COLEMAN et al.
• Court: Texas Court of Appeals

293 S.W. 695

COLEMAN et al. v. COLEMAN et al.

(No. 7722.)

Court of Civil Appeals of Texas. San Antonio.

March 16, 1927.

Rehearing Denied April 13, 1927.

Appeal from District Court, Webb County; J. F. Mullally, Judge.

Action by Amelia Hemans Coleman and others against A. O. Coleman and others, in which the defendant named and others filed cross-actions. From the judgment rendered, the defendant named and others appeal. Affirmed.

Pope, Pope & Pope of Laredo, Cunningham, Moursund & Johnson, of San Antonio, and D. F. Rowe and R. D. Wright, both of Laredo, for appellants.

Mann, Neel & Mann, of Laredo, L. L. Mott, of Houston, M. A. Childers, of San Antonio, and Lewis Rogers, of Houston, for appellees.

COBBS, J.

Amelia Hemans Coleman, Florence Augusta Coleman, and Anna Louise Coleman, a minor, sued their father, A. O. Coleman, their stepmother, Anna Coleman, E. Garcia, Payne Briscoe, Henry Edds, Federal Land Bank of Houston, and its trustee, M. H. Gossett. The plaintiffs sued their father upon his bond as community administrator, alleging that their mother, Anna A. Coleman, died June 29, 1909, and that on July 7, 1911, he executed such bond in the sum of $18,000, with defendant E. Garcia and T. A. Coleman as sureties, and duly qualified by taking the oath prescribed by law; that T. A. Coleman had died, insolvent and adjudicated a bankrupt; that such estate consisted of section 564 in Dimmit county, Tex., and sections 1392, 1394, 1396, and 1398 in Webb county, cattle to the value of $1,000 and horses to the value of $200; that said estate was appraised at $18,000; that their father had not faithfully administered said estate and had failed to pay them any part of the estate to which they were entitled, except small advances not exceeding $500; that the only indebtedness inventoried was 39/40 of the purchase price of such land at $1 per acre, with interest at 3 per cent. per annum, amounting to not exceeding $2,396; that he sold the Dimmit county land and mortgaged the other land for his own personal use and benefit; that about March, 1923, he and his wife, Anna, executed a note for $7,289.52, dated March 14, 1923, payable to defendant Henry Edds, September 28, 1923, bearing 10 per cent. interest, and on March 30, 1923, executed and delivered to Payne Briscoe, as trustee, a deed of trust on the four sections of Webb county land to secure such note; that on September 11, 1923, they gave said Edds another note for $7,638.85 in renewal of the other note and to be secured by same deed of trust; that on March 30, 1923, they executed to Payne Briscoe a deed of trust on the four sections in Webb county, to secure Stockyard Loan Company in the payment of three notes, two for $2,500 and the third for $2,345.89, each dated March 14, 1923, and due September 28, 1923, which notes are now claimed by said Henry Edds; that about March 8, 1919, said A. O. Coleman, reciting himself a widower, executed to Federal Land Bank and its trustee, M. H. Gossett, a deed of trust on said four sections, reciting that it was given to secure the payment of a note for $10,000, payable with interest on the amortization plan in 68 installments; that all of said deeds of trust apparently are unsatisfied, and said Edds is by cross-action seeking foreclosure of the first described two deeds of trust; that said deeds of trust were given to secure the payment of personal indebtedness of A. O. Coleman incurred after he qualified, and that Edds, Briscoe, and Stockyards Loan Company all had actual and constructive notice of that fact as well as the fact that the deeds of trust were given to secure pre-existing debts due by him to Edds. They further alleged that the money obtained from Federal Land Bank for the purpose of settling pre-existing debts of Coleman incurred by him personally after his qualification; that the only debt due by the community was the one to the state and it was paid out of the revenues from the community property.

Plaintiffs alleged that the deeds of trust were all void as to their half interest in the land; that Coleman had dissipated the estate and had failed to account. They prayed for the cancellation of the deeds of trust as to their half interest; that Coleman be required to account; that the property on hand be divided; that they have judgment on the bond for any balance found to be due them and not set apart to them.

The Federal Land Bank answered with exceptions, general and special, and with special answer and cross-action. It alleged: That on January 10, 1919, Coleman applied in writing for a loan of $10,000, representing that $9,300 thereof was for the purpose of paying off previous liens and the balance to be used in paying for stock in the Encinal National Farm Loan Association in the sum of $500, and to buy cattle. That the loan was made and proceeds applied to pay Mrs. Annie E. Chittim $7,500; First State Bank & Trust Company, $800; 100 shares of stock $500; and balance of $1,198 to Coleman. That the first two amounts were paid to satisfy liens on the land. That it paid said sums without any knowledge, actual or constructive, that Coleman had been derelict in his management of the estate. That Coleman had full power to incumber the estate. That the deed of trust was a valid lien. It prayed that plaintiffs take nothing, and that it recover its debt and for establishment of its lien.

Edds and Briscoe answered by general demurrer, special exceptions, etc. They alleged the due qualification of Coleman as administrator, and the execution of the two notes to Edds and the deed of trust securing same, which deed of trust was alleged to cover any other indebtedness; that said debt has not been paid and said lien was in full force. They then alleged the execution of the three notes to Stockyards Loan Company, also described in plaintiffs' pleadings, aggregating $7,345.89, and the execution of the deed of trust securing same; that on March 14, 1924, the indebtedness on said notes had been reduced to $4,870.13 and two new notes were given, one for $2,500 and the other for $2,370.13, due June 16, 1924, which notes and deed of trust lien were transferred to Edds for value on July 29, 1924; that $2,076.70 remained unpaid on said notes. They then made similar allegations to those of the Federal Land Bank as to the power vested in Coleman and the validity of the liens and alleged want of any notice whatever on their part, or of the Stockyards Loan Company, that plaintiffs were claiming any right in said land at the time the deeds of trust were given. They prayed that plaintiffs take nothing and that Edds recover his debt and for foreclosure.

A. O. Coleman answered among other things urging exceptions to the petition, and answered that the Dimmit county land was erroneously placed in the inventory; that he held it in trust and received no consideration for same when he conveyed it; that while for a number of years he had acted as survivor of the community, he did not so act in signing the deeds of trust to Edds, and the debt was not a community debt; that the loan from Stockyards Loan Company was procured by Edds in order that he might receive the money in part payment for 211 cattle sold by Edds to Coleman, and the money was in fact all turned over to Edds. He then for further answer to and cross-action against Edds pleaded that the balance claimed upon the notes was without consideration and paid and satisfied by reason of the following facts: That after giving Edds a mortgage on the 211 head of cattle, aggregating $13,805, he sold Edds cattle aggregating $8,352, and that Edds owed him $1,100 additional on cattle deals. He then pleaded duress and restraint on the part of Edds in obtaining the lien on the land, alleging accusations charging him with a felony and intimating that he expected to and would prosecute this defendant, whereby he was deprived of the power to act free of the force and coercion exercised by Edds. He further charged that he lost $1,350 on account of sacrifice of cattle on which Milmo Bank had a lien, which loss he charged was caused by malicious acts and conduct of Edds in threatening to foreclose on his land and cattle. He further alleged that Edds had made slanderous statements concerning him, charging him with doing away with cattle mortgaged to Edds, and of selling mortgaged cattle, for which he claimed actual damages in the sum of $5,000, and exemplary damages in a like sum.

E. Garcia answered by general demurrer and general denial, and answered that there was sufficient property to pay plaintiffs and that Edds and Briscoe had no interest in the lands, as there was no value paid at the execution of the deed of trust; that they had record notice of plaintiffs' rights; that the pretended lien was for a pre-existing debt, and was not for the benefit of the estate, but the personal benefit of Coleman. He adopted paragraphs 6 and 7 of plaintiffs' petition in which they attack all the deeds of trust. He then denied that the estate had any accruals or income, and that it had produced any revenue, and alleged that if any judgment be obtained against him on the bond he is entitled to judgment over against Coleman. He prayed that all deeds of trust be declared void and the property in the hands of Coleman be partitioned and that plaintiffs receive their one-half.

Plaintiffs by supplemental petition denied the allegation of Edds and Briscoe and Federal Land Bank and its trustee, and denied that Coleman had any right or authority to incumber their land by any trust deed, and denied that said parties had no notice that plaintiffs were claiming any right to the four sections at the time the deeds of trust were given, and alleged that the community administration was had and is still pending in Webb county, and that said defendants all had both actual and constructive notice of the interest of plaintiffs in said estate at the time of the giving of the deeds of trust, and knew that the proceeds were to be...