Donnelly v. Young, 17231

• Decision Date: 24 September 1971
• Docket Number: No. 17231,17231
• Citation: 471 S.W.2d 888
• Parties: A. D. DONNELLY and J. B. Harvill, Appellants, v. Clifton Joe YOUNG, Appellee.
• Court: Texas Court of Appeals

Page 888

471 S.W.2d 888

A. D. DONNELLY and J. B. Harvill, Appellants, v. Clifton Joe YOUNG, Appellee.

No. 17231.

Court of Civil Appeals of Texas Fort Worth.

Sept. 24, 1971.

Rehearing Denied Oct. 22, 1971.

Bill Atkins, Arlington, Royal H. Brin, Jr ., Dallas, and Ernest May, Fort Worth, for appellants.

L. Clifford Davis, and Buck, McBryde & Bogle, and John McBryde, Fort Worth, for appellee.

OPINION ON MOTION FOR REHEARING

MASSEY, Chief Justice.

Our opinion of June 18, 1971, is withdrawn, with the following substituted.

The case is one in which plaintiff Young recovered judgment for actual and exemplary damages of Donnely and Harvill because of their tortious conduct occasioning expenditures, including attorneys' fees, to avert loss of title to real estate. Donnelly and Harvill appealed.

Judgment afformed.

At the time of trial the only plaintiff was Clifton Joe Young, and the only defendants A. D. Donnelly and J. B. Harvill. At the beginning stage, when suit was first filed on September 30, 1966, it way by way of a suit in Trespass to Try Title filed by Clint M. Smith against Young. Young answered by the usual pleadings of a defendant in such a suit, later amended in elaboration thereof, and including Young's suit by way of cross-action against Donnelly and Harvill and Smith, and still later adding Donnelly's wife and other interested parties. Donnelly's wife and the other parties went out of the case under circumstances not material to our opinion. Smith remained in the case until on or about October 27, 1969, when he non-suited his case against Yound and Yound dismissed Smith as a cross-defendant sued.

Young and Smith settled their controversy on all counts, with Smith investing Young with title to the property by delivery of a Special Warranty Deed. Further, by way of assignment, Smith transferred to Young any claims which he possession or could assert against Donnelly or Harvill. Under the assignment Young promptly amended his pleadings and sued Donnelly and Harvill not not only as before, but also (as Smith's assignee) for Actionable Fraud under the provisions of Vernon's Ann.Tex.Civ.St. Article 4004.

Trial was to a jury. The verdict was returned and judgment rendered thereon in favor of Young and against Donnelly and Harvill in accord with Young's theory of cross-action prior to the assignment to him of Smith's claims against the same defendants. However, the trial court disregarded the jury's answers to special issue findings under the theory of the assigned Smith cause of action, and Young was denied any recovery based thereon.

In our consideration of the appeal we have for consideration cross-points of error presented by Young in addition to the points of error by Donnelly and Harvill.

Since this opinion will be rather lengthy, we will state our observations applicable to a cause of action for malicious conversion as result of which an entire property is lost, and as applied to the similar character of action where the victim of a like tort is successful in steps taken to recovery or avert the loss of his property. Under the latter circumstance would oftentimes be found those cases involving realty by reason of the fact that land is fixed and immovable and any titular interest therein which is the subject of tortious conversionary action and found to apparently be the property of another--according to our system of recording and record-keeping in real estate transactions--is sometimes recoverable. The exception, of course, is when the title is found to be in some innocent third-party who has made a 'value' purchase of the property. (Of course such an apparent condition of the title to realty is not necessarily true and if the third-party is or may be shown through litigation to have not truly been 'innocent', etc., the purported transaction whereby he seemed to own the property may be set aside and held for naught).

Where there has been a successful tortious conversion of a victim's property, real or personal, the measure of actual damages to which he is entitled from the tort-feasor is the value of the property converted at the time of the conversion. He is not additionally entitled to any expenses of suit or preparation therefor in the litigation pursuant to which he recovers his damages .

Where the victim recovers his property, or averts the successful conversion thereof, the measure of damages to which he is entitled from the tort-feasor is wholly unrelated to any value of the property. He is entitled to the value of its use while he was out of possession, if that be the case, as applied to pesonal property--and as applied to realty he is entitled to its rental value while he is out of possession for that is the measure of the value of the use of land in the ordinary case. Additionally, in either case, he is entitled to the expenditure made by him which from his viewpoint was necessarily incurred in the recovery of his property or in averting the successful conversion thereof. In the case of realty this would include any payment made by him in order to purchase and 'buy back' the property (i.e. title thereto in the same condition as at the time it was taken from him) plus any incidental expense necessary from his viewpoint; and, if he is put to expenses, payments, attorney's fees, and time of his own, necessarily incurred from his viewpoint in the removal of incumbrances and/or clouds on his title, existent because of or as the natural result of the tortious act which would have amounted to conversion had it been actually accomplished, his would include the amounts paid or obligated to be paid as incurred, plus the value of his own time.

Obviously, what has been said would be entirely applicable to a situation where the victim entered into litigation with a third-party who claimed to be an innocent purchaser for value with the objective of defeating his claim of such status. Should the victim lose his case against the third-party none of his expenditures or time and trouble would be recoverable in his subsequent suit for damages against the tortfeasor. The measure of damages in such a subsequent suit would be the value of the property converted at the time of its conversion. But should the victim prevail in his case against the third-party--and the same thing would apply if instead of prosecuting such case to judgment the victim make a payment which from his standpoint was necessary to resolve his dispute with the third-party and dispose of the litigation by settlement--he would be entitled to recover of the tort-feasor the amount of such payment plus expenses, payments and attorney's fees and the value of time of himself incurred and/or made necessary from his viewpoint. Of course the requirement would obtain that the victim not thereby increase the amount of his actual damages beyond those for total conversion.

In the prosecution of his case against the tort-feasor however, in either event, the victim would not be entitled to any recovery for his subsequent time and trouble pursuant to such prosecution, nor of his expenses, payments, attorney's fees, etc. necessarily incurred or not in the preparation for and actual conduct of his suit.

Since the verdict was in part in accord therewith, we believe it to be convenient to copy from the allegations in Young's pleadings to show the factual situation which may be accepted for our purposes:

'In mid-1965, Mr. Young went to Harvill to inquire about borrowing money to pay off a debt of about $1,400.00 owed by Mr. Young to a Mrs. Turpin. Harvill put Mr. Young in contact with Donnelly, who is Harvill's brother-in-law. Donnelly agreed to make the loan. Mr. Young then asked that the loan be increased by $1,000.00 so that he could make minor improvements on pieces of rental property owned by him. Donnelly expressed agreement. Harvill then prepared the loan papers, consisting of a note and deed of trust securing same and an assignment to Donnelly of the lien that secured the approximate $1,400.00 indebtedness to Mrs. Turpin, which was to be paid off out of the proceeds of the new loan from Donnelly. The deed of trust taken by Donnelly through Harvill from Mr. Young covered 8 pieces of property owned by Mr. Young in Fort Worth, Texas. * * * The note taken from Mr. Young by Harvill for the benefit of Donnelly was payable to Donnelly, and stated a principal amount of $2,600.00, and stated that the payments would be $83.90 per month. Said note and deed of trust taken by Donnelly through Harvill from Young were dated June 15, 1965. Said note did not accurately reflect the consideration given therefor, and the amount owed thereon, inasmuch as it did show a $2,600.00 principal obligation when, in fact, the only money or other consideration ever advanced by or on behalf of Donnelly to Mr. Young or on his behalf as consideration for said note was $1,600.00, about $1,400.00 of which was paid to Mrs. Turpin, the holder of the earlier note, and the balance of which was kept by Harvill as a fee for handling the transaction for brother-in-law Donnelly. In order to induce Mr. Young to sign the inaccurate $2,600.00 note, Harvill assured Mr. Young that he would receive another $1,000.00, and that if, for any reason, he did not, he would never be called upon to repay more than the $1,600.00 which was advanced, together with appropriate interest on that amount; and, Mr. Young was assured by Harvill that the monthly payments would be somewhat less than the $83.90 specified in the note. In all dealings with Mr. Young with reference to said deed of trust and note, Harvill was acting as agent of and with authority of Donnelly and the 2 of them were co-conspirators in an effort to cheat Mr. Young. No further advances were made by or on behalf of Donnelly to or for Mr. Young, with the result that all the maker of the note ever received as consideration for the note was the $1,600.00 heretofore mentioned. As a result, Mr. Young's repayment obligation with...