Houston & T. C. Ry. Co. v. Shirley

• Decision Date: 17 January 1894
• Citation: 24 S.W. 809
• Parties: HOUSTON & T. C. RY. CO. et al. v. SHIRLEY.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

24 S.W. 809

HOUSTON & T. C. RY. CO. et al. v. SHIRLEY.¹

Court of Civil Appeals of Texas.

January 17, 1894.

Appeal from district court, McLennan county; W. S. Baker, Judge.

Action by T. M. Shirley against the Waco Tap Railroad Company, the Houston & Texas Central Railway Company, and others, to recover damages for breach of a written contract between plaintiff and defendant Waco Tap Railroad Company, and to enforce an equitable lien on certain property transferred by such company to defendant Houston & Texas Central Railway Company. From a judgment entered on the verdict of a jury in favor of plaintiff, defendants appeal. Affirmed.

L. C. Alexander, for appellants. R. A. Reeves and E. A. McKinney, for appellee.

KEY, J.

This is the fourth appeal in this case. 45 Tex. 376; 54 Tex. 133. For a full statement of the nature of the suit, see Shirley v. Railroad Co., 78 Tex. 131, 10 S. W. 543. On the last appeal, the supreme court reversed and remanded the cause, with instructions to the district court to try the issue whether the sale of the Waco & Northwestern Railway Company to the Houston & Texas Central Railway Company was fraudulent as to Shirley's rights as a creditor of the Waco & Northwestern Railway Company, and to try no other issue then presented by the pleadings. The opinion further directed the district court as to the amount and character of judgment that should be rendered when the sole question left open by the opinion had been determined. Accordingly, upon the last trial in the court below, the question of fact designated in said opinion was the sole issue submitted to the jury; and, the jury having found in Shirley's favor on that issue, the defendants have appealed. Appellants' brief contains 41 assignments of error, and those raising questions not discussed in this opinion have, nevertheless, been considered, and the conclusion that they present no reversible error has been reached.

As we construe the opinion of the supreme court rendered herein on the last appeal, there was no reversible error committed by the trial court in overruling appellants' plea of nonjoinder of the receiver of the Houston & Texas Central Railway Company; nor in overruling the exceptions to appellee's amended original petition. All of these pleadings were in the record on the last appeal, and some, if not all, of the questions raised by them, were called to the attention of the supreme court by the appellants in this appeal, who were appellees in that appeal. The opinion gives a full statement of the pleadings, including the plea of nonjoinder and the several exceptions to the plaintiff's petition and the pleas of laches and limitation, and holds that the plea of limitation, in so far as it applied to the charge of fraud in the conveyance of the lands formerly owned by the Waco & Northwestern Railway Company, was well taken, but that the court below erred in not submitting to the jury the question of fraud in the transfer of the other property. The opinion then proceeds to direct the district court to determine the latter issue, "and to try no other issue now made or presented by the pleadings in this cause." We regard this as equivalent to a holding by the supreme court that the several matters, whether of fact or law, interposed by the answers of the defendants, except those which joined issue on the question of a fraudulent sale, constituted no defense. If appellants were not satisfied with the action of the supreme court in stripping the case of all other questions except the one question of fact which the district court was directed to try, they should have requested the former court to modify its order. McConnell v. Wall, 67 Tex. 352, 5 S. W. 681; Wells v. Littlefield, 62 Tex. 28.

Among other instructions asked by appellants and refused by the trial court were the following: "(1) The contracts made by the Waco Tap and the Waco and Northwestern Railway Company with the Houston and Texas Central Railway Company, for the building of the road of the former, the bond for $600,000, the deed of trust to Gray and Botts, and the deed from Gray and Botts, as trustees, to the Houston and Texas Central Railway Company, are valid contracts and instruments on their faces, which the parties were competent to make; and it is admitted and agreed that the sale under the said deed of trust was regularly made in accordance with its terms, and the sale under said deed of trust and the conveyance by Gray and Botts vested title in the said property therein described, the railroad, roadbed, franchises, (not including the land donation, which did not pass thereby,) in the Houston and Texas Central Railway Company, and it is entitled to a verdict, unless plaintiff, under the law, has shown that said conveyance was fraudulent." "(3) The fact that a corporation or a person is in debt, even beyond its or his present ability to pay, does not prevent it or him from dealing with his or its property, or entering into business contracts in relation to it, such as sale or mortgage, unless such acts are done in bad faith to creditors. And in this case, if at the time of entering into the contracts and deed of trust between the two roads, considering all the facts and circumstances, — the actual condition of the Waco road, its financial condition, the price for which it was to be built, the fact that, by the building of the same, it would acquire the land grant of 16 sections to the mile of road, the value of said road when built, — the natural effect of such contracts and conveyances was not to hinder, delay, or defraud Shirley, you will find for defendant, unless you find there was in such transaction an actual intent to hinder, delay, or defraud him. If, on the other hand, the natural and probable effect of said acts and transactions were to defraud Shirley, you may find for plaintiff. (4) If the natural and probable effect of acts done and conveyances made were not to illegally and fraudulently defeat a creditor, the fact that, by supervening causes, the creditor is defeated or delayed, would not make the transaction fraudulent. (5) In considering with what legal intent said contracts and conveyances, resulting in the sale of the railroad under the deed of trust, were made, you may consider, in connection with all the evidence, the fact that the land grant of 16 sections to the mile did not pass by the deed of trust and the deed thereunder, giving to that fact such weight as you deem it entitled to. (6) The jury are further instructed that if the contract to build said road, including the deed of trust, were made in good faith, and not under circumstances, as explained, which made said acts fraudulent, and the sale under said deed was made in like good faith, then the fact that there was afterwards a conveyance of the lands in 1874, even if the same were fraudulent in law or fact, would not entitle plaintiff to impeach the conveyance of the railroad, its bed, franchises, etc., under said...