Creager v. Beamer Syndicate

• Citation: 274 S.W. 323
• Decision Date: 14 January 1925
• Docket Number: (No. 7191.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: CREAGER et al. v. BEAMER SYNDICATE et al.
• Court: Texas Court of Appeals

274 S.W. 323

CREAGER et al. v. BEAMER SYNDICATE et al.

(No. 7191.)^*

Court of Civil Appeals of Texas. San Antonio.

January 14, 1925.

Rehearing Denied May 27, 1925.

Appeal from District Court, Hidalgo County; L. J. Polk.

Suit by the American Rio Grande Land & Irrigation Company against the Beamer Syndicate and others, in which named defendant filed cross-action against W. E. Stewart, who filed a cross-action against named defendant, plaintiff, and others. After judgment of dismissal as to plaintiff was rendered, judgment was rendered in favor of Beamer Syndicate and others, and R. B. Creager, receiver, and others appeal. Affirmed.

Gause & Kirkpatrick, of Mercedes, McDaniel & Bounds, of McAllen, Wm. S. West, of Brownsville, Kennerly, Williams, Lee & Hill, and Irl F. Kennerly, all of Houston, Bennett & Anderson, of Mercedes, and George A. Hill, Jr., of Houston, for appellants.

W. L. Dawson, of Mission, and Don A. Bliss, of San Antonio, for appellees.

COBBS, J.

This is the same case, with some exceptions, that was heretofore passed upon by this court and reported as Beamer Syndicate v. Stewart, in 236 S. W. 795. We refer to that case and adopt the statement as applicable here, with exceptions that will be noted from time to time distinguishing the case as then on appeal from it as now on appeal. The appellants have joined in a common fight and have answered by exceptions, pleas, and pleas to the jurisdiction of the court, and by general and special answers.

The case was tried by a jury upon special issues, which special issues and the answers thereto are as follows:

"No. 1. Did W. E. Stewart, at the time he purchased from the American Rio Grande Land & Irrigation Company the John T. Beamer notes, have any knowledge or notice of the agreement between the American Rio Grande Land & Irrigation Company and the Beamer Syndicate represented by its trustee, W. D. Price, with reference to the extension of the period for the payment of the indebtedness represented by said John T. Beamer notes? Answer this question `yes' or `no,' as you may believe from, and in accordance with, a preponderance of the evidence.

"Answer: Yes.

"No. 2. In purchasing said John T. Beamer notes from the American Rio Grande Land & Irrigation Company, was the said W. E. Stewart acting for the defendant Stewart Farm Mortgage Company? Answer this question `yes' or `no,' as you may believe from, and in accordance with, a preponderance of the evidence.

"Answer: Yes.

"No. 3. Was the said W. E. Stewart acting for the defendant Stewart Farm Mortgage Company at the times he disposed of the lands in controversy in this suit? Answer this question `yes' or `no,' as you may believe from, and in accordance with, a preponderance of the evidence.

"Answer: Yes.

"No. 4. Did Arthur J. Summers, the substitute trustee named in the execution agreement with reference to the John T. Beamer notes between the American Rio Grande Land & Irrigation Company and John T. Beamer, refuse to act as such substitute trustee? Answer this question `yes' or `no,' as you may believe from, and in accordance with, a preponderance of the evidence.

"Answer: Yes."

Some of the questions that arise on this appeal were present in the former appeal (236 S. W. 795) and were there disposed of.

The record and briefs in this case are most voluminous. The transcript contains 1,109 pages, and the statement of facts 2,523 pages. Appellees' brief contains 156 pages, and their supplemental brief 45 pages. Brief of appellants Creager, receiver of Stewart Farm Mortgage Company, Mann, receiver of Stewart Farm Mortgage Company, Stewart Farm Mortgage Company, and W. E. Stewart, contains 136 pages, and their supplemental brief 18 pages. Brief of A. F. Parker, appellant, contains 41 pages. Brief of appellants C. I. Haven and A. R. Haven contains 26 pages. Brief of appellants Orion E. Vivion, A. E. C. Coy, C. S. Osborn, George Waldeck, Arthur A. Simons, F. E. Ludwig, and W. G. Beatty contains 51 pages. We are expected to read the record and briefs of all the parties and to weigh and consider the same, which we have done. Then we are to pass upon every point and write a short opinion. A difficult task is set for us.

Appellants present 47 assignments and 14 lengthy propositions. Appellees present cross-assignments and propositions thereunder.

Appellants' first proposition, that appellees must be confined to the title pleaded and to the relief sought, is sound. But an examination of the lengthy pleading leads us to conclude that it is quite ample to let in the evidence introduced and to grant the relief sought. There is no objection, in suits of trespass to try title, which is purely a possessory action, to the complainant setting out facts, especially of an equitable nature, to aid in his recovery of further and additional relief in the alternative.

Appellants' second proposition is so long and involved that it is quite difficult to reduce it to a concrete proposition of law. It is based upon the complaint that the court erred in overruling the general demurrer. And they contend in that proposition that the plea-over of the Beamer Syndicate is predicated upon such rights as were granted to the Beamer Syndicate under the terms of the American Company's letter of June 28, 1919, alleged as an extension agreement, and as such is insufficient because W. E. Stewart and Stewart Farm Mortgage Company were not parties and not liable for the breach of the American Rio Grande Land & Irrigation Company, and such attempt to enforce the contract against them is violation of the statute of frauds.

Again, if the notes were extended thereby to July 31, 1919, the trustee's sale, which the American Company was to cause to take place on August 5, 1919, would have been void because the sale could not have been preceded by legal notices and such agreement would be illegal and unenforceable. Again, the notes were in default, and the trustee was legally bound to sell, which he did, to the highest bidder and to disregard the Beamer Syndicate bid, and if the sale had been made under the Beamer Syndicate bid it would have been illegal and fraudulent, based upon a collusion and fraudulent contract, on which no rights could be founded in favor of the Beamer Syndicate, in law or in equity. This proposition has six distinct subjects — a more multifarious proposition could hardly be imagined.

However, as it presents in the outset propositions in a large way that will dispose of much of the case, we will discuss the entire case so far as the propositions are applicable.

Briefly speaking, the Beamer Syndicate was created by John T. Beamer, who conveyed his title to the lands which he claimed to own at that time, together with other property, to the Beamer Syndicate and its trustees. When Beamer purchased the land, he gave his notes as part consideration therefor, and the notes were owned by the American Rio Grande Land & Irrigation Company. W. D. Price was the president of the Beamer Syndicate. And when Beamer purchased the land there were a number of outstanding notes and deeds of trust securing them against the land, which were superior to the Beamer Syndicate title; but subsequently these notes were assumed by it. Beamer, having conveyed his title to the Beamer Syndicate, parted with his interest except the right to see that the notes were discharged by his vendees. W. D. Price, the president of the Beamer Syndicate, testified that in order to prevent the sale he went to St. Louis in person and made arrangement to have the foreclosure sale postponed and the indebtedness extended to July 31, 1919. To guarantee the agreement, Mr. Price, for the Beamer Syndicate, deposited $10,000, with the American Rio Grande Land & Irrigation Company, the owner of all the notes outstanding and in controversy.

To make plain the facts pertaining to the extensive agreement, we quote from the testimony of Mr. Price of the Beamer Syndicate, as follows:

"On January 2, 1919, as requested of us, I deposited $10,000 with Mr. J. H. Price, president of the American Rio Grande Land & Irrigation Company. Up until this time, for reason that I will now state, we were unable to make any progress in selling these lands after Mr. Snyder foreclosed on November 5, 1918.

"Our contract was that we were to pay them $100,000 in cash by June 30, 1919, and the remainder in vendees' notes as we sold the land.

"Previous to the time when this land was deeded to Beamer, on May 27, 1918, there had been trust deeds on six or seven hundred acres of it given to H. C. Van Meter, P. F. Krueger, John E. Smith, and W. A. McDonald, to secure notes which they held; and as the interest had not been paid on the notes, these parties holding these trust deeds had decided to foreclose on June 3, 1919, and get the deeds to the property in their names, and to assist us in raising the $100,000 by June 30, 1919, they were willing to allow us to sell the land. We therefore made a contract with the Quimby Land Company of St. Louis to make some sales immediately following the transfer of this property to the parties after they foreclosed on June 3, 1919; these foreclosures took place on that date.

"Early in May, believing it would be difficult for us to raise the entire $100,000 by June 30, I went to St. Louis to see Mr. J. H. Price, president of the American Rio Grande Land & Irrigation Company, if we could get an extension on $30,000 of it until July 31, 1919. Mr. Price said he would talk the matter over with Mr. McMillin, and see if it would be agreeable to him. He did so, and came back and reported that Mr. McMillin said it would be perfectly agreeable, and would grant the extension until July 31st on $30,000.

"In January, 1919, Mr. H. C. Van Meter, one of the trustees, paid the American Rio Grande Land & Irrigation Company $8,000, which was to be applied on the payment of $100,000; and on June 28th I went to St. Louis and deposited $62,000 with Mr. J. H. Price in the...