Fidelity & Deposit Co. v. Texas Land & Mortgage Co.

• Decision Date: 04 November 1905
• Parties: FIDELITY & DEPOSIT CO. OF MARYLAND v. TEXAS LAND & MORTGAGE CO., Limited.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

90 S.W. 197

FIDELITY & DEPOSIT CO. OF MARYLAND v. TEXAS LAND & MORTGAGE CO., Limited.^*

Court of Civil Appeals of Texas.

November 4, 1905.

Appeal from District Court, Dallas County; Richard Morgan, Judge.

Action by the Texas Land & Mortgage Company, Limited, against the Fidelity & Deposit Company of Maryland and another. From a judgment for plaintiff, defendant the Fidelity & Deposit Company of Maryland appeals. Affirmed.

Rehearing denied November 25, 1905.

This is an action brought by appellee in the district court of Dallas county, Tex., to recover of Mary Burke, formerly Mary Curran, individually and as administratrix of the estate of Patrick Curran, deceased, and of the appellant as surety, the sum of $3,000, the alleged reasonable rental value of the land and premises described in its petition from January 2, 1900, to January 18, 1901. The suit was based upon the bond of the said Mary Burke, as administratrix of the said Curran's estate, and a replevy bond given by her in an action of trespass to try title on the part of appellee to recover of her said property, both of which bonds appellant had signed as surety. It was not specifically alleged that the administration of Patrick Curran's estate was closed, and the administratrix discharged; nor that the claim made the basis of plaintiff's cause of action had been presented to the administratrix for allowance and the same rejected or allowed. The defendants filed a plea to the jurisdiction of the court, and answered by general and special exceptions and a general denial, etc. The case was submitted to a jury on special issues, and upon their answers judgment in favor of appellee for the sum of $2,711, including principal and interest, was rendered against appellant and the said Mary Burke, individually and as administratrix of the estate of Patrick Curran, deceased. The judgment further provided that execution thereon should issue against appellant and the said Mary Burke personally; but, in so far as rendered against the said Mary Burke in her official capacity, the same should be certified to the county court for observance. From this judgment, appellant alone has appealed.

The facts are as follows: On January 19, 1897, appellee was the owner and in possession of the property described in its petition, being lot 3, block 95, and lot 4, block 128, situated in the city of Dallas, Tex. On that day appellee sold and conveyed said property to one Patrick Curran, in consideration of $300.68, cash paid by the said Curran, and his promissory note for $32,500, payable to appellee on or before January 1, 1900, with interest from January 1, 1897, at the rate of 8 per cent. per annum, payable semiannually. The vendor's lien was expressly retained by appellee in its conveyance of said property to said Curran to secure the payment of said note. Upon the execution and delivery of said conveyance, Patrick Curran took possession of said property, and remained in possession thereof until his death, which occurred on July 25, 1898. Thereafter on September 13, 1898, the defendant Mary Burke, then Mary Curran, and the surviving wife of Patrick Curran, upon her own application, was appointed administratrix of the estate of said decedent by the county court of Dallas county, Tex., and on the 3d day of October following, she qualified by giving bond in the sum of $44,000, payable and conditioned as required by law, and taking the oath prescribed by law. Said bond was signed by appellant, Fidelity & Deposit Company of Maryland, as surety, and duly approved by the court. In pursuance of said appointment the said Mary Curran, administratrix, took possession of the property which had been conveyed to her husband as stated, and remained in possession thereof until January 18, 1901. About the 1st day of January, 1899, the said $32,500 note became due, by reason of default in the payment of interest, etc., whereupon appellee elected to rescind the sale made by it to said Curran, and evidenced by the conveyance and note mentioned; and in pursuance of such rescission demanded possession of said property of said administratrix, but she refused to surrender possession thereof, and thereafter, on the 22d day of March, 1899, appellee instituted suit of trespass to try title for the recovery of said property against said administratrix, individually and in her representative capacity, and others, and caused the said property to be sequestered. The said Mary Curran thereupon, as administratrix, and under the order of the county court of Dallas county, made upon her own application, replevied said property by executing and delivering to the sheriff of Dallas county a replevy bond, payable to the appellee and conditioned as required by law, signed by herself as administratrix and by the appellant, Fidelity & Deposit Company of Maryland, as surety, which said bond was duly returned to and filed in the district court of Dallas county. In pursuance of said replevy bond, the said administratrix remained in possession of said property as theretofore. On January 2, 1900, the said suit of trespass to try title was tried, and resulted in a judgment in favor of the appellee against the said Mary Curran, individually and as administratrix, and the other defendants, for the land therein in controversy, being the land hereinbefore described, and against the said administratrix and appellant company, for the value of the rents thereof from the date of the institution of said suit, on the 22d day of March, 1899, to the date of judgment, the same amounting to the sum of $1,678.30. The said administratrix in her official capacity, on said date excepted to the judgment of the district court in the last-named suit, and in open court gave notice of appeal to the Court of Civil Appeals for the Fifth Supreme Judicial District of Texas, where said judgment was affirmed on November 10, 1900. The said administratrix applied to the Supreme Court for a writ of error, and her application was refused by the Supreme Court on January 18, 1901, thus making the judgment of the trial court of January 2, 1900, final. The said administratrix, as such, remained in possession of the property replevied as aforesaid, and by virtue of said replevy bond after the rendition of the judgment of January 2, 1900, as she had theretofore, and collected the rents; and there was paid to her in actual cash, in her official capacity as administratrix during the period elapsing between the date of the rendition of the judgment of January 2, 1900, and the refusal of the writ of error by the Supreme Court on January 18, 1901, as rents of said property the sum of $1,929.50.

Mrs. Curran testified: "I used some rents for attorney's fees, making repairs, etc., and living expenses. I paid them out for attorney's fees, repairs, and living expenses." Referring again to the same matter, she says: "I do not remember that my attorneys advised me to whom the rents collected for this period [pending the appeal] belonged. I spent the money as I have stated before. I did not make any claim that the money was mine, but I naturally supposed that I had the right to use the money." The estate of Patrick Curran has no property whatever and is insolvent. The administratrix, Mrs. Curran, on July 22, 1901, filed her final report in the probate court, signed and sworn to by her, wherein she makes this statement: "This administratrix shows that said appeal [referring to the appeal from the judgment of January 2, 1900, in the case of Texas Land & Mortgage Company, Limited, v. Mary Curran et al.] was prosecuted without bond under the statutes, and that pending same she collected certain rents, and made certain disbursements, but she says that said Texas Land & Mortgage Company have a claim therefor against her, and will probably sue thereon, and she submits that the district court having decided that said property was not the property of this estate, and that judgment having been affirmed, and the plaintiff in said cause having and holding said claim for rents against her, that she should not report such collections as she made during the said appeal in the matter of this estate, as the same formed no part of this estate." Nothing has been done in the Curran estate since the filing of this report, which has never been acted on; and the administration of said estate has not been formally closed by an order of the probate court. Mrs. Curran, the administratrix, left Dallas, and went to New Orleans, in the state of Louisiana, in March, 1900. The final account above referred to was filed while she was in New Orleans. The claim for the rents, sued for in this action, was never presented to the administratrix for allowance, and was never rejected or allowed by her. This suit based on aforesaid bonds was filed October 10, 1901, at which time the administratrix had been absent from the state about 19 months, and was and is herself insolvent. The jury's finding of the rental value of the land and premises described in appellee's petition, and the judgment rendered thereon are supported and justified by the evidence.

W. P. Finley, for appellant. Coke & Coke, for appellee.

TALBOT, J. (after stating the facts).

Appellant's assignments of error from the first to the eleventh, inclusive, complain of the action of the court in overruling its general and special exceptions to appellee's petition and plea to the jurisdiction of the court. The several propositions submitted under these assignments are in substance: (1) That the liability on the replevy bond terminated with the judgment of the district court and such bond does not include liability for the rents of the real estate mentioned during the period of appeal; (2) that the replevy bond could not operate as a supersedeas bond and suspend the enforcement of the judgment in the district court, but that the suspension of the enforcement of the judgment in the district court in this case, was by reason of the fact that the...