Hendrix v. Nunn

• Decision Date: 01 January 1876
• Citation: 46 Tex. 141
• Parties: P. J. HENDRIX v. Q. J. NUNN ET AL.
• Court: Texas Supreme Court

46 Tex. 141

P. J. HENDRIX

v.Q. J. NUNN ET AL.

Supreme Court of Texas.

1876.

APPEAL from Wood. Tried below before the Hon. Z. Norton.

On the 9th of February, 1850, a certificate for a league and labor of land, No. 1421-1520, issued to Charles T. Stanley. On the 27th of December, 1851, Stanley mortgaged said certificate to Larkin Hendrix and B. F. Pace. On the 8th of October, 1853, Stanley had surveyed by said certificate one league of land in Wood county; but whether the field-notes were returned to the General Land Office is not shown. The land so conveyed was covered by an older valid claim, having been titled to William Barnhill October 14, 1835.

In 1855 suit was brought by Hendrix and Pace against Charles T. Stanley to foreclose their mortgage on said certificate. During the pendency of this suit, in 1856, Stanley died testate, and by his will, which was probated in Wood county, the league of land in Wood county, surveyed under said certificate, was bequeathed to his wife, Sarah Stanley, who was appointed sole executrix. Sarah Stanley gave bond and qualified, and at the February Term, 1857, of the District Court, made herself a party defendant in said suit of Hendrix and Pace v. Charles T. Stanley, being cause No. 126.

At the August Term, 1857, of the District Court, judgment was rendered in said cause in favor of Hendrix and Pace and against Sarah Stanley, administratrix of Charles T. Stanley, deceased, for $1,273.02 1/2, and foreclosing plaintiff's mortgage on said certificate, ordering the same to be sold as under execution.

On the 19th of October, 1857, an order of sale issued on said judgment, directed to the sheriff of Travis county, and said sheriff levied upon said certificate, and sold the same as under execution to R. M. Johnson and Larkin Hendrix for $476.20, which amount was credited upon said judgment. The sheriff executed a deed, and delivered the certificate to Johnson and Hendrix.

One labor of said certificate had been sold by Stanley before executing the mortgage to Hendrix and Pace.

In February, 1858, the heirs of William Barnhill, who held the superior title to the land in Wood county, brought suit in the District Court of Wood county against their co-heirs for partition, and against Sarah Stanley, J. M. Lloyd, and Thomas Etheredge as trespassers. Sarah Stanley was served with citation in October, 1858, and appeared by counsel and answered, said suit being No. 264.

At the Spring Term, 1860, Larkin Hendrix intervened and had himself made a defendant, claiming title under the Stanley certificate.

On the 12th of March, 1867, R. M. Johnson conveyed to Larkin Hendrix all his interest in said certificate. At the Fall Term, 1867, of the District Court, a judgment was rendered in said cause No. 264, adjudicating the rights and interests of the several parties in and to the land and the said Stanley certificate, and ordering partition.

Partition was made, and reported, and at the Fall Term, 1868, a final judgment was rendered in the cause, giving Sarah Stanley one hundred and sixty acres of land, giving the land now sued for to Larkin Hendrix, and dividing the Stanley certificate between Hendrix and the heirs of William Barnhill. Thus matters were on the 24th day of September, A. D. 1873, when appellees instituted suit in the District Court of Wood county against Larkin Hendrix. The petition charged that Charles T. Stanley, at his death, was the owner of a headright league and labor of land certificate, which, on October 8, 1853, he had located on lands in Wood county; that the survey had been made thereon, and the field-notes, with certificate, duly returned to the General Land Office.

That said location was community property of the said deceased and his widow, Sarah Stanley, and plaintiffs claim as heirs of said Charles T. and Sarah Stanley.

That on October 1, 1858, suit for partition was brought by part of the heirs of William Barnhill against their co-heirs, Lloyd and Mrs. Sarah Stanley, being No. 264.

That in this suit, May 16, 1867, an agreement was made between the heirs of William Barnhill and Hendrix, dividing the land so covered by the Stanley certificate, the agreement being to the effect that Hendrix was to be equally interested in the land held by the Barnhill title, and that the Barnhill heirs were to share equally with Hendrix in the Stanley league certificate-- protecting, however, Lloyd and Mrs. Stanley in their improvements, &c.; that thereafter judgment was rendered, a commission appointed to make partition, whose report was confirmed, in which 2,100 acres of the Barnhill land (also covered by the Stanley location) was adjudged to Hendrix, of which, however, 235 acres were allotted to Lloyd and 160 acres to Mrs. Sarah Stanley.

That at the rendition of this judgment Hendrix had no title or interest in the Stanley certificate, nor in the survey made therein, and that “all his pretensions of right thereto and his actions therein were in fraud of the rights of petitioners.”

Plaintiffs claimed all the land set apart in the partition to Hendrix, except that allotted to Lloyd and Mrs. Sarah Stanley, and one half of all lands secured by the Stanley certificate elsewhere; also $1,600, the alleged value of the land wrongfully conveyed by Hendrix to Lloyd.

By amendment, June 22, 1874, plaintiffs alleged that at the time Hendrix assumed to control the said Stanley certificate he had no right or title thereto, nor had he subsequently acquired any right therein, or to the land located by said certificate; and that all his (defendant's) acts in that behalf were fraudulent as to these petitioners, and in law and equity are held and deemed to have been acts done in trust for petitioners and their use and benefit. This amendment contained a description of lands located by Hendrix by virtue of the Stanley certificate, for half of which judgment was asked.

By further amendment, February 26, 1875, plaintiffs alleged that their mother, Sarah Stanley, up to her death, was induced, by the false and fraudulent representations of Hendrix, to believe that he had a good title to the Stanley certificate and land located by virtue of it; that the false and invalid claim of Hendrix was fraudulently concealed from Mrs. Sarah Stanley during her life, and from plaintiffs until a short time before the filing of the suit herein; that plaintiffs reside out of the county, have little education or experience in affairs, no legal knowledge, and did not know how to help themselves against the fraudulent acts of Hendrix; that Hendrix was a shrewd and unscrupulous man, and had the ability to make his neighbors believe that he owned the said property of plaintiffs which he had in possession, from which they were discouraged from investigating their rights in the same; that he declared everywhere in the region in which he and plaintiffs resided, that he had a good title to said property; and that plaintiffs never did discover the fraud of Hendrix “until they had a conversation with Winston Banks, one of the attorneys for plaintiffs in this cause, three or four months before the institution of this suit.”

The defendants demurred and excepted to the sufficiency of the petition, pleaded a general denial, statute of limitations, suggested improvements in good faith, and expenses about the property in locating the certificate, &c.

The jury found the following verdict: “We, the jury, find for the plaintiff all the lands claimed by plaintiffs lying in Wood county, except the Lloyd tract; also all lands claimed by plaintiffs in Cooke and Clay counties, except one fourth undivided interest in said lands.

We, the jury, find for defendant the Lloyd tract of land in Wood county, in lieu of the value of improvements made in said county on lands claimed by plaintiffs by said defendant; also one fourth interest in the land located in Cook and Clay counties, as compensation for locating and other expenses.”

Upon which, judgment was rendered. Motion for new trial was overruled, and defendant appealed.

Payne & Putman, for appellants, cited Kerr on Frauds, 365; State v. Galveston City Co., 38 Tex., 12;Morton v. Welborn, 21 Tex., 774;Roberts v. Frisby, 38 Tex., 219.

Banks & Crow, for appellees, cited 2 Story's Eq. Jur., §1255, 1262, 1265; Barziza v. Story, 39 Tex., 355;Spurlock v. Sullivan, 36 Tex., 511;Cunningham v. Taylor, 20 Tex., 129;Robertson v. Paul, 16 Tex., 472;Boggess v. Lilly, 18 Tex., 205;Ripley v. Witbee, 27 Tex., 14;Anding v. Perkins, 29 Tex., 354;Emerson v. Navarro, 31 Tex., 340;Robinson v. Davenport & Tinsley, 40 Tex., 337.

MOORE, ASSOCIATE JUSTICE.

The theory upon which this suit was brought is, that Larkin Hendrix, appellant's testator, took the land set apart to him by the decree of the District Court in the case of Barnhill's Heirs v. Barnhill's Heirs, as a trustee in invitum for Sarah Stanley, the widow, legatee and executrix of Charles T. Stanley, deceased, or for her and plaintiff's, appellees, in this court, as the legal and equitable owners of the headright certificate for a league and labor of land, issued to said Charles T. Stanley. It was not the purpose of this suit to review and impeach or annul the judgment in the case of Barnhill's Heirs v. Barnhill's Heirs, and to show that plaintiffs had the superior title to the land...