Fant v. Sullivan

Decision Date13 November 1912
Citation152 S.W. 515
CourtTexas Court of Appeals
PartiesFANT et al. v. SULLIVAN et al.<SMALL><SUP>†</SUP></SMALL>

Appeal from District Court, Bexar County; A. W. Seeligson, Judge.

Action by Ermi Fant and D. R. Fant, prosecuted after their death by D. R. Fant, Jr., and others, against D. Sullivan and another. From a judgment for defendants, plaintiffs appeal. Affirmed.

Francis J. Kearful, Reagan Houston, Jr., Geo. R. Thomson, and Reagan Houston, all of San Antonio, for appellants. Newton & Ward and Denman, Franklin & McGown, all of San Antonio, for appellees.

MOURSUND, J.

This suit was filed on March 16, 1907, by Ermi Fant and D. R. Fant against D. Sullivan and W. C. Sullivan. Afterwards D. R. Fant, Jr., Sutherland C. Fant, Ophie Fant Collins, R. J. Collins, Aggie Fant Ramsey, L. O. Ramsey, Byrdie Fant Tarut, C. J. Tarut, and Lucille Fant South and Jas. B. South, appellants herein, filed a motion suggesting the death of the original plaintiffs, and also the death of Mrs. Lucie A. Fant, the wife of D. R. Fant, one of the original plaintiffs, all of whom were alleged to have died intestate, and alleging, further, that D. R. Fant, Jr., Sutherland C. Fant, Ophie Fant Collins, Aggie Fant Ramsey, Byrdie Fant Tarut, and Lucille Fant South were the only surviving heirs and legal representatives of the deceased original plaintiffs. They prayed that they be made parties plaintiff in the place of D. R. Fant and Ermi Fant. The motion was granted October 10, 1911, and on same day they filed their first amended original petition, containing in substance, the following allegations:

(1) That on or about July 29, 1902, and prior thereto, J. C. Russell and Mary C. Russell, his wife, were the owners of two tracts of land situated in Hidalgo and Brooks counties, known as the "Coyote Ranch," aggregating 41,847.86 acres, said lands being particularly described in the petition.

(2) That on or about July 28, 1902, said Russells sold said ranch to D. R. Fant for $52,309.58, of which $15,000 was paid cash, and vendor's lien retained to secure remainder.

(3) That on or about the date of the purchase of the Coyote ranch D. R. Fant owned other lands, approximating 284,000 acres, also about 5,283 cattle and 28 horses, all of which property was mortgaged to defendants to secure about $300,000 due them.

(4) That about February 24, 1903, to secure an extension for one year of $260,000 due the defendants, said D. R. Fant executed to J. C. Sullivan, trustee for defendants, a deed of trust conveying all of said lands approximating 284,000 acres.

(5) That in said instrument the Coyote ranch was not specifically described, but, after describing the other lands, the following provision was inserted: "And all tracts of land in said above-mentioned counties of Cameron, Hidalgo, Starr, and Zapata, whether specifically named and described herein or not, and owned by me or claimed to be owned by me, and belonging to me, the grantor herein, D. R. Fant, and comprising any part of what is known as the Fant and Santa Rosa Ranch properties in the above-mentioned counties, are herein and hereby conveyed, and all leasehold interests, rights, and contracts held by me, said D. R. Fant, to any of the above-described lands are also conveyed; it being the intention of this instrument to convey all of the lands of the grantor herein, D. R. Fant, in the said counties of Cameron, Hidalgo, Starr, and Zapata, as well as all the interest of said D. R. Fant, whether in fee simple or leasehold, or of any right or character or kind held by the said D. R. Fant to any and all land situated in said counties aforesaid, and comprising in all about fifty leagues of 220,000 acres of land, more or less."

(6) That on or about May 13, 1903, in order to secure an extension of $63,000 of said indebtedness, D. R. Fant executed another deed of trust to J. C. Sullivan as trustee for defendants, conveying the same lands as in the preceding deed of trust, and with the same blanket provision covering all lands in Hidalgo and other counties.

(7) That default having been made in the payment of the interest due July 29, 1903, on the vendor's lien notes against the Coyote ranch, the Russells filed suit in Nueces county for their debt, and for foreclosure of their lien.

(8) That having been repeatedly notified by defendant D. Sullivan that his note for $260,000 would not be extended on February 9, 1904, said D. R. Fant began negotiating for the sale of his Santa Rosa ranch of 186,000 acres for $2.50 per acre, and on January 7, 1904, was about to effect such sale. That on or about said last-named date defendants, through their agent, Dr. Amos Graves, Sr., entered into an oral agreement with D. R. Fant, by which defendants agreed, if said Fant would cease his negotiations for the sale of said ranch at $2.50 per acre, D. Sullivan & Co. would sell at public sale all of the properties covered by the deeds of trust and chattel mortgages held by them, would buy in the properties, then sell a sufficient amount thereof to pay the Fant indebtedness to D. Sullivan & Co., together with the expense of handling the properties and 10 per cent. to J. C. Sullivan as attorney's fee, and return the remainder of said properties to Lucie A. Fant, wife of D. R. Fant, and that defendants would take up the debt on the Coyote ranch, and carry that in the same way; also, that they would pay Mrs. Fant $335 per month living expenses until the sales should be made and settlement effected.

(9) That afterwards defendants caused all of said properties, except the Coyote ranch, to be sold under their liens aforesaid, and bought same in at 50 cents per acre for land and $1 per head for cattle and horses, which was about one-tenth of the value of said properties, and thereupon defendants held said properties in trust according to the terms of their agreement of January 7, 1904; but, after selling a sufficient amount thereof to satisfy the Fant indebtedness to them, together with interest, attorney's fees, and expenses of handling the property, they refused to account for or turn over the remainder, but repudiated said trust, and claimed the properties as their own until said trust was established by final decree of this court, rendered in cause No. 19,375, on June 1, 1907, wherein D. R. Fant and Lucie Fant were plaintiffs and D. Sullivan & Co. defendants. The nature of plaintiffs' demand in said cause No. 19,375 was then pleaded, and the answer of defendants in which they repudiated said trust agreement and claimed the property as their own, and it was further alleged that upon trial of said cause said trust agreement was established, the Fant indebtedness allowed to the amount of more than $600,000, leaving a balance of $65,841 and about 97,000 acres of land in the hands of D. Sullivan & Co., which by said decree was awarded to Mrs. Lucie A. Fant as her separate property.

(10) That, although bound by the trust agreement to take up and carry the debt of J. C. and Mary Russell against the Coyote ranch, D. Sullivan & Co. failed and neglected to do so, but permitted the suit of said Russells for foreclosure to go to judgment, and the said ranch to be sold under order of sale, at which sale it was bought by said Russells for $15,000.

(11) That, after the failure of D. Sullivan & Co. to take up the Fant debt against the Coyote ranch and its sale under foreclosure as aforesaid, D. R. Fant applied to the Russells to redeem said ranch, and they prior to June, 1905, agreed that for the sum of $60,000 they would convey said ranch to Ermi Fant for the use and benefit of D. R. Fant, and H. P. Drought & Co. had agreed to loan the $60,000 upon said ranch. That the agreement so made would have been carried out by all parties, but for the interference of the defendants D. Sullivan & Co., who having full knowledge of all the transactions above mentioned, when it became apparent that the arrangement was about to be consummated, by and through their agent, J. C. Sullivan, notified H. P. Drought & Co. that they claimed a lien on the Coyote ranch by virtue of their deed of trust dated February 24, 1903, from D. R. Fant, covering all lands and interest in lands in Hidalgo county, that said lien would be superior in whole or in part to the proposed trust deeds in favor of H. P. Drought & Co., and that, if H. P. Drought & Co. made the loan of $60,000, they would lose a substantial part of their money, and become involved in litigation.

(12) That, because of said representations, H. P. Drought & Co. refused to pay over the $60,000, and declared the agreement canceled.

(13) That said representations of D. Sullivan & Co. to H. P. Drought & Co. were wholly false, in that whatever interest in or right to the Coyote ranch, if any, that D. Sullivan & Co. held by virtue of the blanket provision in their deed of trust, dated February 24, 1903, from D. R. Fant, were held by them, under their said agreement of January 7, 1904, in trust for the Fants, and were grossly fraudulent, in that they were made for the purpose of acquiring the ranch for themselves without paying anything therefor over and above the vendor's lien held by the Russells, and were intensely malicious, in that they were made with the intent of preventing Fant from redeeming the ranch.

The actual damages were alleged at $274,982.88, and plaintiffs also sued for $100,000 exemplary damages. On September 28, 1911, defendants filed plea in abatement, alleging that the cause of action asserted herein was a tort unconnected with a contract, and did not survive to the legal representatives or heirs of the original plaintiffs, who had died since the bringing of the suit. The defendants on January 2, 1912, filed their first amended original answer, and pleaded that there was a misjoinder of causes of action, in that plaintiffs were attempting to sue for breach of the alleged trust agreement for the benefit of Lucie A. Fant, and also to sue for...

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