Home Inv. Co. v. Strange

• Decision Date: 13 June 1917
• Docket Number: (No. 2516.)
• Parties: HOME INV. CO. et al. v. STRANGE.
• Court: Texas Supreme Court

195 S.W. 849

HOME INV. CO. et al. v. STRANGE.

(No. 2516.)

Supreme Court of Texas.

June 13, 1917.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Trespass to try title by H. B. Strange against the Home Investment Company and others. There was a judgment for plaintiff, which was affirmed by the Court of Civil Appeals (152 S. W. 510), whereupon defendants brought the case here upon a petition for writ of error. Reversed and remanded.

Leake & Henry, N. L. Lindsley, and W. J. Moroney, all of Dallas, for plaintiffs in error. L. C. McBride, of Dallas, for defendant in error.

YANTIS, J.

This suit was instituted in the district court of Dallas county by H. B. Strange, by petition in trespass to try title, against the Home Investment Company, a corporation, and W. B. Kendall and his wife, Emma G. Kendall, to recover the title to seven lots situated in Dallas county, Tex., being lots 12, 13, 14, 15, 16, 17, and 18 of Huffman subdivision of lots 1 and 4 of Block A, Bowser & Lemon's addition to the city of Dallas. The original petition was filed February 9, 1907. On June 29, 1908, an amended petition was filed by Strange, making W. J. Moroney a party defendant in the suit. Moroney is a lawyer, and was president of the Home Investment Company. In this amended petition it was alleged by Strange that on or about January 1, 1906, he was the just and rightful owner, and entitled to the possession, of the lands sued for in the original petition; and that on or about said date he employed W. J. Moroney, who was a practicing attorney, and engaged his services to perfect his (Strange's) title to said lands, and to clear up and acquire for his benefit any outstanding titles which the judgment of said Moroney deemed necessary or proper to be acquired or cleared up; but that instead of said Moroney representing his interests, as he was employed to do, he, in truth and in fact, undertook to clear the title in such manner as to acquire the title of said land for the benefit either of himself or the defendant corporation, the Home Investment Company, by acquiring the outstanding titles to said lands, and by placing the title thereto in the name of the Home Investment Company, of which Moroney was president. By this amendment the same relief was prayed for as was sought in the original petition by him; that is, that he have judgment for the title and possession of said lands for rents thereon, and for general, special, and equitable relief.

On March 19, 1909, Strange, the plaintiff in the district court, filed his fourth amended petition, and while still maintaining his right to recover the lots described in the original petition in the form of trespass to try title, he asked also to be permitted to recover in trespass to try title against the said defendants the title and possession of 11 other lots, being numbered 1 to 11, inclusive, which were also located in the Huffman subdivision of lots 1 and 4, Block A, Bowser & Lemon's addition to the city of Dallas. By this amendment he alleged that with reference to these lots also the defendant Moroney was employed by him to perfect their titles in him, Strange, and to secure any outstanding titles in his favor; and that Moroney secured the outstanding titles for his own benefit, or for the benefit of the Home Investment Company; and that as to all of the lots sued for in this amended petition the Home Investment Company had notice when the title was placed in its name of the obligation of Moroney to clear the titles for the plaintiff, Strange, and of Moroney's fraud in placing the title in fact in the name of the Home Investment Company.

By his fifth amended petition Strange sued in trespass to try title for all of the lots mentioned in the fourth amended petition, and further alleged that since January 1, 1906, the defendants, W. J. Moroney and Home Investment Company, have at all times held and possessed said lots in trust for the use and benefit of the plaintiff, Strange, and that if it should appear on the trial that either or both of said defendants have disposed of said lands, or any portion of the same, then the plaintiff, Strange, would elect upon the trial as to each of said lots whether he should have judgment for the specific lot or its value, and he alleged the value of each of said lots to be $1,000, and rapidly enhancing. He also alleged in his petition that neither of said defendants is in position to ask for restoration or reimbursement by him of any sums expended by either of them in attempting to gather in or acquire such titles; but that if plaintiff should be in error in this position, and it should be ascertained on the trial that the said Moroney or the Investment Company had actually expended any sum or sums of money in attempting to acquire said titles, and that in law or in equity it was incumbent upon the plaintiff, Strange, to refund or repay them, or either of them, such sums so expended, then the plaintiff, Strange, offers to repay such sums, and requests that the court, as a condition precedent to a recovery by him, require, in the order or decree to be entered, a reimbursement of such sums by him to said defendants.

By answer the defendant Home Investment Company disclaimed any right, title, or interest in lots 1, 2, 9, 10, and 11. It pleaded the statute of limitations of two years as a defense to the cause of action sued on.

The defendant W. J. Moroney filed a separate answer, in which he disclaimed any right, title, or interest in any of the property in controversy, and he expressly disclaimed in favor of his codefendant, the Home Investment Company. He also pleaded the two-years statute of limitations against a personal judgment being rendered against him, alleging that, if Strange had any cause of action against him, it accrued more than two years prior to the institution of suit thereon.

Kendall and wife disclaimed as to any of the lots except lots 17 and 18, of which two lots they claimed to be the legal owners.

The case was submitted to a jury on special issues. The questions by the court, and the answers thereto by the jury, are as follows:

(1) Did the defendant Moroney agree or undertake to represent the plaintiff as attorney, and to endeavor to clear or acquire for plaintiff title to the land in controversy? Answer: Yes.

(2) Did the defendant Moroney, for himself or Home Investment Company (and which), pay out, in connection with said lands, any money with the object and purpose upon his part of benefiting the plaintiff, wholly or partially, and not with the sole object and purpose of benefiting himself or Home Investment Company? If he did so, then state the amount. If not, simply say so by the answer, "No." In answering this question, consider only such expenditures, if any, as were shown by the evidence to have been reasonably necessary and reasonable in amount. No.

(3) What is the reasonable market value now of lots 3 to 8, inclusive, and lots 12 to 18, inclusive, involved? State separately the present value of each lot. Answer:

                Lot 3........$1100 00  Lot 13.........$ 400 00
                 "  4........ 1100 00   "  14.........  400 00
                 "  5........ 1100 00   "  15.........  400 00
                 "  6........ 1100 00   "  16.........  400 00
                 "  7........ 1100 00   "  17......... 1000 00
                 "  8........ 1100 00   "  18......... 1000 00
                 " 12........  800 00
                

Upon these findings by the jury the trial court entered judgment in favor of the plaintiff, Strange, for lots 1 to 18, inclusive, conditioned, however, as to the recovery of lots 17 and 18, upon the plaintiff paying into the registry of the court for Kendall and wife the sum of $438.05, together with 6 per cent. interest, failing in which the title to said lots 17 and 18 to be and remain in said defendant Emma G. Kendall; and, further, the trial court awarded a personal judgment in favor of Strange and against Moroney and the Home Investment Company in the sum of $6,600, with interest, being the value of lots 3 to 8, inclusive. Appeal was taken by Moroney and the Home Investment Company to the Court of Civil Appeals, 152 S. W. 510. The case was decided by the Fourth Court of Civil Appeals at San Antonio...