Ferguson Seed Farms v. McMillan
| Decision Date | 18 May 1927 |
| Docket Number | (No. 2831.)<SMALL><SUP>*</SUP></SMALL> |
| Parties | FERGUSON SEED FARMS, Inc., v. McMILLAN et al. |
| Court | Texas Court of Appeals |
Thos. S. Henderson, of Cameron, Owsley & Owsley, of Denton, F. L. Henderson, of Bryan, and Jesse F. Holt, of Sherman, for plaintiff in error.
Freeman, McReynolds & Hay, of Sherman, for defendants in error.
The defendant in error McMillan filed this suit against the plaintiff in error, alleging that on September 22, 1924, he was the owner in fee simple of certain gin property described in his petition, which he had constructed at a cost of $65,000; that on said date he and his wife by warranty deed conveyed said property to plaintiff in error, which for convenience will be hereinafter referred to as defendant, for a total consideration of $25,000, evidenced by five notes for $5,000 each, one note payable January 1, 1925, and the remaining notes payable one each year to January, 1929; that said notes were secured by deed of trust on the property conveyed; that the defendant, Ferguson Seed Farms, Inc., by deed of trust dated September 1, 1924, but in fact acknowledged and recorded September 15, 1924, had conveyed said gin property and other property, in trust, to Jessie F. Holt and J. J. Eubank, as trustees, for the purpose of securing the payment of bonds, aggregating $75,000, payable September 1, 1934, but that none of said bonds had been transferred or negotiated by said defendant; that, at the time of the execution and delivery of the aforesaid deed to defendant, plaintiff was of unsound mind and was totally lacking in mental capacity to execute a valid deed, conveying said property; that he was caused and impelled by said diseased mental condition to execute said deed; that at the time of its execution the property was of the reasonable value of $65,000, and the consideration which defendant agreed to pay for same was wholly inadequate and was not the fair value of said property, which facts were well known to the defendant; that the instrument so executed by plaintiff to the defendant, was void, by reason of the facts alleged, and did not operate to convey to defendant any title to said property; that, if mistaken in alleging that said deed was void, then plaintiff shows that at the time said instrument was executed, he was of unsound mind and wholly lacking in mental capacity to execute a valid conveyance of said property, and was impelled by a diseased mental condition, and that said instrument was and is voidable at his instance, and that, since the execution and delivery of said instrument, he has become of sound mind, and has made demand on defendant for the rescission and cancellation of said instrument, and has tendered to the defendant the notes executed in lieu of the purchase money for said property, and here now renews his tender and offer to rescind and cancel. The prayer is that the deed executed by him and his wife and also the notes and deed of trust executed by the defendant, Ferguson Seed Farms, Inc., be canceled and annulled. He prayed for judgment for title and possession of the property, and for removal of the cloud on his title, for damages and costs of suit.
The defendant answered by general demurrer, general denial, and specially denied that plaintiff was of unsound mind at the time the deed was executed, and further alleged that defendant had bought the land in good faith, and, if plaintiff was of unsound mind and afflicted with any mental trouble, which is denied, it did not know it, and that defendant was ready, able, and willing at all times to perform its part of the contract. Defendant also filed an application to change the venue of the case from Grayson county, which was overruled.
The controversy was submitted to a jury upon special issues. The substance of the findings being as follows:
Based upon this verdict, the court rendered judgment divesting all of the defendants, including the two trustees, of all title to the property, and rescinding and canceling the conveyance above mentioned, and the notes. Judgment was further rendered in McMillan's favor for damages in the sum of $5,000, with interest from the date of the judgment.
The first contentions relate to the action of the court upon the application for change of venue. The application is sworn to by A. M. Ferguson, as president of the defendant company, and the material recitals are as follows:
The plaintiff urged the following demurrer to the application:
The court sustained the demurrer and heard testimony only upon the issues of local prejudice against the defendant company and the existence of a combination instigated by influential persons against the defendant.
The defendant's first proposition is that prejudice against A. M. Ferguson, president of the defendant corporation, to such an extent that defendant could not get a fair trial, is in law admitted by the demurrer, which was sustained by the court, and is sufficient statutory ground for granting the application, and the court erred in sustaining said exception and limiting the inquiry to prejudice against the defendant only. It will be observed that the application is substantially in the words of the first two subdivisions of R. S. art. 2170, with the exception that prejudice is alleged to exist against defendant's president, A. M. Ferguson. This part of the application, we think, should be considered as falling under subdivision 3 of said article, which reads: "For other sufficient cause, to be determined by the court."
It appears from the record that, after sustaining the special exception, which eliminated the issue of proof of prejudice against A. M. Ferguson, the court heard testimony upon the other two issues, and upon such hearing overruled the application. This evidence is not before us, and in support of the judgment, we must presume that the court has ruled correctly as to those issues.
An application for change of venue, which follows the language of the statutes substantially, in setting out the first two grounds, may be sufficient, but, as to the third ground of the statute, we think the facts relied upon as showing a "sufficient cause" should be fully set out in the application, since their sufficiency is to be determined by the court. This is the general rule in other jurisdictions. 40 Cyc. 153, 154. In a suit against a corporation alone, the allegation in its application for change of venue that local prejudice exists against its president, cannot by any reasonable construction be made referable to the first two subdivisions of said article, because the president is not a party to the suit. A corporation and its officials are separate entities. If prejudice against him is such as to entitle the corporation to the change, there should be some facts alleged under subdivision 3, which will tend to show the court why and to what extent prejudice against him personally will jeopardize the rights of the defendant. This is what was done by the movant in Trimble v. Borroughs, 41 Tex. Civ. App. 554, 95 S. W. 614, cited by defendant. The statement in the application that the defendant cannot get a fair trial in Grayson county, because of local prejudice against its president, A. M. Ferguson, is simply a conclusion of the pleader, and was subject, we think, to the demurrer which the court sustained, and which we construe to be a general demurrer to that particular allegation. A general demurrer does not admit the truth of legal conclusions found in the pleading demurred to (Sanders State Bank v. Hawkins [Tex. Civ. App.] 142 S. W. 84), and, where conclusions, rather than the facts from which they may be drawn, are pleaded, the construction must be against the sufficiency of the plea (Berry v. American Rio Grande Land & Irrigation Co. [Tex. Civ. App.] 236 S. W. 550).
The courts will not deduce one fact from the existence of another or resort to argument or inference in order to give a pleading an interpretation which it should not receive. Texas & Pacific Ry. v. Bayliss, 62 Tex. 570. Of course, the general rule is that, as against a general demurrer, every reasonable intendment deducible from the facts pleaded must be indulged by the court in favor of the pleading, but in this instance no facts whatever are pleaded. It is not alleged that A. M. Ferguson was the active president or manager of his company, or that he negotiated the trade, nor, as was suggested in oral...
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...or vindication of any substantial right, it is not available error to sustain a demurrer to it." See, also, Ferguson Seed Farms v. McMillan (Tex. Civ. App.) 296 S. W. 902. We believe appellant's proposition should be We have given the most careful consideration to the other propositions adv......
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Ferguson Seed Farms v. McMillan
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