Hines v. Sparks

• Decision Date: 03 February 1912
• Citation: 146 S.W. 289
• Parties: HINES v. SPARKS et al.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

146 S.W. 289

HINES v. SPARKS et al.^†

Court of Civil Appeals of Texas. Amarillo.

February 3, 1912.

Rehearing Denied March 8, 1912.

Appeal from District Court, Potter County; J. N. Browning, Judge.

Action by Florence L. (Taylor) Hines against John Sparks and others. From a judgment for plaintiff in part and for defendants in part, plaintiff appeals. Reversed and remanded.

See, also, 99 Tex. 411, 90 S. W. 485, 6 L. R. A. (N. S.) 381.

M. W. Stanton, Cooper, Merrill & Lumpkin, and Fiset & McClendon, for appellant. Gustavus, Bowman & Jackson, and W. O. Davis, for appellees.

PRESLER, J.

The pleadings in this case are voluminous, covering some 50 pages of the transcript, and the issues made thereby, so far as the consideration of the same are necessary to the determination of this appeal, and can be condensed within reasonable limits, will appear in the following statement of the case: Appellant instituted this suit in the district court of Sherman county, against appellees James W. Taylor and John Sparks, to recover certain sections of land in said county which appellant claimed as her separate property. The suit was instituted on the 3d day of May, 1902, by appellant, who was then the wife of said Taylor and suing under the name of Taylor, as sole plaintiff, and J. W. Taylor and John Sparks as sole defendants. Thereafter these appellees, T. S. and S. D. Meador, who compose the firm of Meador Bros., were also made parties defendant. There was a jury trial in Sherman county in 1904, which resulted in a verdict and judgment in favor of plaintiff for title and possession of all the land in controversy and a judgment over in favor of defendants Meador Bros. against defendants Taylor and Sparks upon their warranties. From this judgment an appeal was taken to the Second Court of Civil Appeals, and the cause was subsequently transferred to the Court of Civil Appeals at San Antonio, which court affirmed the judgment of the trial court. From this judgment a writ of error was sued out to the Supreme Court, and that court reversed and remanded the cause to the district court for a new trial. After the mandate of the Supreme Court was filed in the district court of Sherman county, the cause was transferred by agreement of all parties to the district court of Potter county. Later in 1908 John Sparks, who was a resident of the state of Nevada, died, and his will was probated in Williamson county, Tex., where he owned real estate. By the terms of this will Nancy Elmira Sparks and Benton H. Sparks were named as the independent executors thereof, without bond, and they were duly appointed as such executors by the county court of Williamson county, and qualified as such and were thereafter made parties to this suit by scire facias proceedings and were properly served to answer but did not put in appearance.

The plaintiff's petition contains three counts. The first is in the statutory form of an action in trespass to try title, and the third is an action for money had and received. The second count, which sets out plaintiff's cause of action in detail, alleges, in substance, the following: That on June 16, 1900, Josephine and Josiah F. Crosby were the owners of 30 sections of land in Sherman county, including the 7 sections in controversy. That on or about said date said Crosbys and J. W. Taylor entered into a contract, whereby the latter in consideration of $1,000 paid, secured an option upon said lands for 60 days, under the terms of which he had the option during the period named to purchase said lands for $9,600; the $1,000 to be credited as part of the said purchase price if the option were taken up, but otherwise he was to lose the $1,000. That on June 29, 1900, plaintiff and said Taylor were married at Morenci, Mich., plaintiff being then a resident of Toledo, Ohio, but shortly moved to El Paso, Tex., where she and said Taylor lived until some time in August, 1900. That in September, 1900, Taylor came to Toledo and procured from plaintiff $5,000, under circumstances hereinafter detailed for the purpose of taking up said option, which he in fact took up, and deed was executed to him by the Crosbys about November 20, 1900. That Taylor then proceeded to sell off said lands, and sold off all except the seven sections in suit. That on or about March 1, 1902, plaintiff sued Taylor for divorce in the district court of El Paso county, Tex., in which suit an injunction was issued against Taylor and others restraining the sale or other disposition of plaintiff's property; Taylor being served with citation and said injunction on March 3, 1902. That this cause was called for trial October 8, 1903, and plaintiff being ill and unable to attend court, and being unable to procure a continuance, was permitted to take a nonsuit without prejudice. That said suit was refiled in said court of April 9, 1904, and final judgment for divorce rendered in favor of plaintiff against said Taylor on October 12, 1905. That about February 15, 1902, one C. F. Rudolph, who was county clerk of Sherman county, purporting to act as the agent of said Taylor, made a contract with Meador Bros., whereby Taylor agreed to convey to Meador Bros. said seven sections for the sum of $7,676.50, less $49.14, to pay taxes and $22 expense of surveying, the sum of $100 being paid at the time as earnest money to be credited on the purchase price, the balance to be paid when a satisfactory abstract was furnished and upon execution by said Taylor of a deed with general warranty, $5,659.27 thereof to be remitted to the Lowden National Bank at El Paso, and $968.09 to be remitted to Rudolph. That thereafter Taylor caused to be prepared a deed to defendant Sparks, which purported to be dated, acknowledged before said Rudolph, and filed in Sherman county on March 1, 1902, purporting to convey said seven sections to Sparks for a recited cash consideration of $6,008.85. That about March 10, 1902, Meador Bros. procured a draft for the sum of $5,659.27 at St. Jo, Tex., and forwarded same, together with a blank deed to be executed by Taylor to them, conveying said lands, reciting a cash consideration of $6,227.36. These they accompanied by a letter directing the bank to deliver the draft to Taylor upon his executing the deed, and to send deed to Meador Bros. at St. Jo, Tex. This letter was signed by C. F. Rudolph, as agent for J. W. Taylor, and by Meador Bros., was dated Stratford, Tex., February 25, 1902, and had been prepared by Rudolph and forwarded by him to Meador Bros. at St. Jo, accompanied by an abstract to the land, made and certified to by himself. That this draft was forwarded for collection by said bank on March 13, 1902, and the proceeds held by the bank as the agents of Meador Bros. until May 10, 1902, when, in violation of its agency, it transmitted the proceeds to John Sparks. That Sparks about April 18, 1902, executed a deed whereby, for the expressed consideration of $6,008.85, he conveyed the lands to Meador Bros. and forwarded said deed and the deed from Taylor to himself to said bank with a letter instructing the latter to deliver same to Meador Bros. upon payment by them of the sum of $6,000. That the bank held said deeds from the date of their receipt in April, 1902, as the agent of Sparks, until long after the filing of this suit on May 3, 1902. That when plaintiff married said Taylor she had as her separate property a large amount of real estate in Toledo, Ohio, and that the $5,000 loaned by her to Taylor was raised and loaned under the following circumstances: Plaintiff raised the money by mortgage upon her separate property in Toledo under an agreement with Taylor that he was to use $1,000 to repay himself for what he had paid for said option and the balance in paying for said property; the remaining portion of the purchase money to be paid for out of sales of the land, and the title to be taken in the name of plaintiff, and the land to be her separate property. And when the land was sold Taylor was to share equally in the net profits. That Taylor merely signed the notes and mortgage to bind his inchoate right of dower under the Ohio laws. That this transaction was valid under the laws of Ohio, as well as under the laws of Texas, and the proceeds of said loan were her separate property under the laws of each of said states. That Taylor procured the money under promise to carry out this arrangement, and plaintiff relied upon said promise. That Taylor, without the knowledge or consent of plaintiff, fraudulently took the title in his own name and began to dispose-of the lands in fraud of plaintiff's rights and had disposed of all but the seven sections in suit. That Taylor used the money of plaintiff in the purchase of these lands, but that if he did not do so he was estopped by his fraudulent misappropriation thereof to deny that he so used it, and that the balance of the purchase money he paid out of the proceeds of the sale of the lands. That plaintiff was a bona fide resident of Ohio at the time this arrangement was made, under whose laws the husband and wife may contract with each other, and the husband had no interest in or control over the lands and property of the wife, except, in case of her death, an endowment for life in one-third of all her real estate.

It is alleged: That this agreement and the said $5,000 were procured by said Taylor from plaintiff by fraud, in that he never intended to take title in her name, or to carry out the agreement, but intended to defraud her out of her money and out of said lands. That said Taylor, Sparks, Rudolph, Bank, Meador Bros., and divers other persons conspired together to defraud her out of said seven remaining sections, and that all the acts of said parties above set out were done in furtherance of said fraudulent conspiracy. That said deed was antedated, and the acknowledgment and record thereof antedated, in that same was not in fact signed, acknowledged, or recorded until March 3, 1902, after said...