Fryer v. Weakley

• Decision Date: 30 October 1919
• Docket Number: 5398.
• Citation: 261 F. 509
• Parties: FRYER et al. v. WEAKLEY.
• Court: U.S. Court of Appeals — Eighth Circuit

261 F. 509

FRYER et al. v. WEAKLEY.

No. 5398.

United States Court of Appeals, Eighth Circuit.

October 30, 1919

This is an appeal from an order of the District Court made on December 12, 1918, appointing a receiver of a certain tract of land in Dunklin county, Mo., worth about $75,000, and of the rents and profits thereof, worth about $5,000 annually on the petitions for such a receiver of the plaintiff below Bettie G. Weakley, and also on the opposing affidavits of the defendants W. S. Fryer and G. L. Fryer. The defendants appealed, and they assailed the order on the grounds: (1) That at the time it was made the District Court was without jurisdiction of the subject-matter of and of the parties to the suit, because the plaintiff and the defendants were all citizens and residents of the state of Tennessee and (2) that on the proof presented to the District Court the appointment of a receiver was contrary to the rules and principles of equity jurisprudence. The proof on the part of the plaintiff consisted of several affidavits made by the single affiant, T. F. King, the agent and attorney in fact of the plaintiff, to her complaint, and to her petition and supplemental petition for a receiver, and it consisted on the part of the defendants of separate affidavits of the defendants W. S. Fryer and G. L. fryer. There was no denial of any fact alleged in the affidavits of the Fryers, except by some counter statements in the complaint or in the petitions verified by King. There is nothing in the record to indicate that King was more familiar with the facts or more truthful than either of the Fryers.

The burden of proof of the facts requisite to sustain the order for the receiver was on the plaintiff, and therefore, where King's affidavits aver, and the affidavit of one or the affidavits of both of the Fryers contradict such averment, it must be deemed to be unproved. For example: One of the pleadings verified by King alleges that each of the Fryers is insolvent; another that the plaintiff was in possession of the land when this suit was brought. Each of the Fryers avers in his affidavit that he is solvent, and that he is worth at least $6,000 above his liabilities, and W. S. Fryer testifies that he has been in possession of the land ever since the death of Dr. R. N. Fryer on April 7, 1915, and still is, together with his brother, G. L. Fryer, so in possession thereof; that he has rented it to tenants during this time, who were in possession under his leases at the time this suit was commenced, tenants who have made and delivered to him or G. L. Fryer annual rental notes payable to the plaintiff and himself, which he or G. L. Fryer have collected. The plaintiff admits and charges that the Fryers have collected these rents and have failed to account for some of them, and the Fryers have testified in their affidavits that they have collected the rents and fully accounted for and paid over to the plaintiff her full share of them. In this state of the evidence the Fryers must be found to be solvent, and the possession of the land to have been in W. S. Fryer or G. L. Fryer through the tenants, who were in possession and were attorning and paying the rents to them, when this suit was commenced and ever since. Considering the evidence according to this rule, and laying aside matters irrelevant to the issues presented here, the pertinent facts are these:

W. S. Fryer was the nephew of G. N. Fryer, who was a capitalist. He lived with his uncle, G. N. Fryer, from 1909 until some time in 1914, when he went to Hot Springs, Ark., for his health. He had devoted his labor and energies to the development of his uncle's property, who had paid him nominal wages under an understanding between them that he would provide for him in the final disposition of his property. Pursuant to this arrangement Dr. Fryer executed and delivered a written instrument on November 13, 1913, which was recorded on November 15, 1913, whereby he leased, demised, and let to his sister-in-law, Bettie G. Weakley, the plaintiff, the land in controversy, to have after his death for her natural life only, and appointed his nephew W. S. Fryer 'agent and attorney in fact to take charge of said lands after my death, and manage the same, rent out, and collect the rents, taking notes in the name of said Bettie G. Weakley and his name, and keep up the land, making necessary repairs and pay the taxes out of the rents. After all expenses are paid as above mentioned, he, the said William S. Fryer, is to have and retain one-half of the net amount of the rents as his own, and to pay to the said Bettie G. Weakley the other one-half, and make annual settlements with her.'

About October 1, 1914, while W. S. Fryer was ill at Hot Springs, the plaintiff conveyed back to Dr. Fryer her interest in this land, and on the same day he executed an instrument whereby he demised, leased, and let the same land to her after his death for her natural life only, and appointed his son-in-law, T. F. king, agent and attorney in fact to do the same things W. S. Fryer was appointed to do in the instrument of November 13, 1913, and provided that he should be allowed his necessary expenses in so doing 'and any additional compensation she (the plaintiff) may see fit to allow him. ' On January 26, 1916, the plaintiff brought suit in equity against W. S. Fryer, in which she pleaded the instruments of November 13, 1913, and October 1, 1914, made similar allegations regarding these instruments to those made by her in this suit, and prayed that the former be adjudged void, the latter valid, and that the management and control of the land and of all the rents and profits be decreed to belong to T. F. King. On November 22, 1916, the plaintiff, through her attorneys in that suit, in consideration of $1,606 then paid to her, through her attorneys of record in that suit, by W. S. fryer, made a written contract of compromise and settlement of all matters in controversy between them to this effect: That the instrument of November 13, 1913, should be recognized as a valid instrument with these changes: (a) That plaintiff, instead of being paid by W. S. Fryer annually one-half of the remainder of the proceeds of the rents and profits of the land after the payment of the taxes, repairs, etc., should be paid by him annually $2,750, commencing on November 15, 1917; (b) that W. S. Fryer or his agent or attorney should collect and have for his own all the rents for the years 1915 and 1916, except those which had been already received by the plaintiff, and should pay the plaintiff $115 and the cost of that suit. W. S. Fryer paid to the plaintiff's attorney of record, and she received, the $1,606, and the Dunklin county court on November 22, 1916, rendered a decree in which the terms of this compromise were embodied. Thereupon, on November 27, 1916, W. S. Fryer sold his beneficial interest, under the compromise agreement and the instrument of October 13, 1913, to G. L. Fryer for 80 acres of land and other valuable considerations. In December following the plaintiff filed a petition in the compromised suit in the Dunklin county court to set aside its decree; that petition was granted over the objection of W. S. Fryer, and he excepted to that ruling. The plaintiff then dismissed that suit, and thus deprived W. S. Fryer of his exception.

In 1917 the plaintiff brought a suit in the federal court below against W. S. Fryer and G. L. Fryer and some of the tenants on the property, in which she made the same claims that she had made in her Dunklin county suit, and that she now makes in this suit, and alleged that the Fryers had collected and appropriated to their own use $4,000 or $5,000 of the rents collected from the tenants on the property, and later she dismissed that suit. On April 17, 1917, she brought this suit against George C. Harris, C. L. Harris, Walter L. Carey, and D. C. Julian, tenants on the property, who were residents and citizens of the state of Missouri, while she was a resident and citizen of the state of Tennessee. She pleaded in her complaint the instruments of November 13, 1913, and October...