Henyan v. Trevino

• Decision Date: 19 April 1911
• Citation: 137 S.W. 458
• Parties: HENYAN et al. v. TREVINO et al.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

137 S.W. 458

HENYAN et al. v. TREVINO et al.^†

Court of Civil Appeals of Texas. San Antonio.

April 19, 1911.

On Motion for Rehearing, May 17, 1911.

COPYRIGHT MATERIAL OMITTED

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

Trespass to try title by Felix Trevino and others against I. B. Henyan and another. From the judgment, defendants appeal. Affirmed.

Denman, Franklin & McGown, for appellants. Selig Deutschman, T. H. Ridgeway, and Clark & Bliss, for appellees.

NEILL, J.

This suit was brought by Felix Trevino and a number of other parties against I. B. Henyan, individually, and as independent executor of the will of Natividad Garza Martinez, and against Margarita Saldana Martinez, George Martinez, Francisco Saldana, Matea Martinez, and Susana Saldana in trespass to try title to recover certain real property described in plaintiffs' petition and for a partition of the same.

Plaintiffs alleged in their third amended original petition, on which the case was tried, substantially: That on June 4, 1904, and long prior thereto, they and those under whom they claim were in actual possession of and claiming title to a large and valuable tract of land holding possession of different parts thereof, but together occupying and claiming in severalty title to the whole thereof, which tract is described as follows: Lying and being situated within the corporate limits of the city of San Antonio, Bexar county, Tex., being original city lots Nos. 5, 6, and 7, in range 1, district 3, and bounded on the south by Crockett place, on the west by McCullough place, on the north by an alley, and on the east by Rock Quarry Road. That the plaintiff Fabiana Sorola de Gonzales was then occupying the following part of the said tract, viz.: All that portion of a subdivision of said tract made by I. B. Henyan, and said portion so occupied and claimed by said Fabiana Sorola herein described by metes and bounds as follows: "Beginning at the southeast corner of lot No. 8 in new city block 2,964, on the north side of Crockett place; thence north along the dividing line between lots 8 and 9, 75 feet; thence in a northwesterly direction on a straight line to a point on the north line of lot No. 20 of same block midway between its northwest corner and its northeast corner; thence in a southwesterly direction in a straight line to a point on the west line of lot No. 20, 50 feet from its northwest corner, the same being on the east line of what is now known as Gillespie street; thence south along the east line of Gillespie street to the southwest corner of said block 2,964; thence east along the north line of Crockett place to place of beginning." Then follows a description of the different parts of the tract of land first described, occupied and claimed by each of the several plaintiffs on January 4, 1904.

Said petition also alleges:

That the defendant Margarita Saldana Martinez was then occupying and claiming title to all that part of said subdivision made by the said Henyan, more particularly described as follows: "Beginning at the northeast corner of new city block 2,964; thence in a northeasterly direction along the west line of Jones avenue to a point 35 feet from northeast corner of lot No. 6 in new city block 2,998; thence west on a straight line parallel with south line of the alley dividing said new city block 2,998 to a point on the north line of lot No. 2 in said new city block midway between its east and west lines; thence in a straight line in a southwesterly direction to a point on the south line of Washington place and the north line of lot 20 in new city block 2,964 midway between the northeast and northwest corners of said lot; thence on a straight line in a southeasterly direction to a point in lot 9 of new city block 2,964, 20 feet from its west line and 75 feet from its south line; thence on a straight line in a northeasterly direction to the place of beginning."

That T. W. Campbell, receiver of the estate of Arthur P. McNutt, deceased, was also claiming title and possession of the land first described, and that a controversy arose between plaintiffs and the said Campbell, as such receiver, as to who was the rightful owner and entitled to the possession of said land, and suits were instituted by the receiver against Fabiana Sorola, Refugio Lopez Severo Lopez, now deceased, Petra Arambula, and Victor Quintero for the title and possession of said land in the Forty-Fifth district court of Bexar county, Tex. And that said suits were afterwards consolidated and known as consolidated cause No. 14,662 and styled "T. W. Campbell, Receiver, v. I. B. Henyan, Independent Executor of the Estate of Natividad Garza Martinez, et al." And that said receiver was threatening suit against the rest of plaintiffs herein to recover title and possession of said property, but that no suits were actually filed against any of plaintiffs save those above named.

That prior to and on June 7, 1904, defendant Henyan was a regular practicing attorney in Bexar county, Tex., and has ever since been such. That plaintiffs, and each of them, reposing confidence in the ability and integrity of said defendant, some time prior to said date, employed him to represent them as their attorney in the controversy that had arisen between them and T. W. Campbell as such receiver regarding the title and possession of said property, and to appear in court and represent all and each of them in all suits filed against them by said receiver, and to protect their interest in said property. That Henyan accepted said employment and undertook to represent plaintiffs and each of them in said matters. And that, in pursuance of such employment, he appeared and filed answers for all of plaintiffs who had been sued in all suits that were filed against them by said receiver concerning said property, and especially in said consolidated cause.

That plaintiffs and each of them reposed free and full confidence and faith in I. B. Henyan, believing that he would represent their interest in good faith and with reasonable diligence and would protect them in all their rights. But that he formed a fraudulent design to cheat and defraud all and each of plaintiffs out of their interests in said lands, and that he entered into a conspiracy with the defendants Margarita Saldana Martinez, George Martinez, Francisco Martinez, Matea Martinez, and Susana Saldana for that purpose, and that Henyan and the other defendants confederated together in the matters afterwards alleged in the petition for the purpose of defrauding and cheating plaintiffs out of their interest in said land. But, if plaintiffs are mistaken in the allegations as to such a conspiracy with all the defendants, then they alleged that I. B. Henyan conspired with the said Margarita Saldana Martinez, George Martinez, and Francisco Martinez for the purpose of cheating and defrauding plaintiffs and each of them out of their interests in said land.

That, in pursuance of said conspiracy and fraudulent design, Henyan represented to and advised plaintiffs, who had employed him to enter into a compromise and settlement of the controversy existing between said receiver and plaintiffs regarding the title to and possession of said land, that the question involved in the controversy was doubtful, and there was a possibility of plaintiffs losing the land entirely, unless they entered into a compromise and settlement of the same, and advised plaintiffs who had employed him that it would be to their best interest to settle the matter by a compromise with the receiver, and represented to them that said receiver was willing that all those occupying the land should have a part of the same, which is afterwards described in the petition, and that he (the receiver) would take the other half; and that, if plaintiffs would move off that part proposed to be assigned and taken by the receiver, he would turn over the remainder of the land to plaintiffs to be parceled among them in proportion to their respective interests as occupied and claimed by them in the entire tract. That he, the said Henyan, further represented to and advised plaintiffs who had employed him as their attorney that it would be necessary for all occupying said land to move from all that portion of the tract south of San Pedro place so that it could be cleared and divided among them in such proportion that each would receive his share in accordance with the proposed compromise. That plaintiffs, believing and relying upon said representations of Henyan, were induced thereby to agree upon and enter into such compromise; and that, reposing full faith and confidence in Henyan, believing he would discharge his duty to them and protect their interest in the land, authorized him to make and enter into for them such compromise and agreement. That Henyan then represented to them it would be to their best interest that the title to all the land they were occupying, which they would secure by such compromise, should be placed in the defendant Margarita Saldana Martinez alone in order that it could be properly distributed among all so that each should receive his proper share; and that plaintiffs, relying upon and believing said representations of Henyan, were induced thereby to agree that the title should be placed in said Margarita Saldana Martinez alone; and each of plaintiffs, under the advice of Henyan, agreed that he would move off of all that part of the land north of San Pedro place until the portion assigned them below San Pedro place could be divided so each one might receive his respective share.

That thereafter, on June 3, 1904, for the purpose of effecting such compromise, the following agreement in writing was entered into: "No. 14,662. T. W. Campbell, Receiver of Estate of Arthur P. McNutt, Deceased, v. I. B. Henyan, Independent Executor of the Estate of Natividad Garza Martinez, Deceased, et al. In District Court, Forty-Fifth Judicial District, Bexar...