Kelley v. Wright

• Decision Date: 17 November 1944
• Docket Number: No. 14654.,14654.
• Citation: 184 S.W.2d 649
• Parties: KELLEY et ux. v. WRIGHT et al.
• Court: Texas Court of Appeals

Page 649

184 S.W.2d 649

KELLEY et ux. v. WRIGHT et al.

No. 14654.

Court of Civil Appeals of Texas. Fort Worth.

November 17, 1944.

Rehearing Denied January 5, 1945.

Appeal from District Court, Wichita County; Irvin J. Vogel, Judge.

Bill of review by Kork Kelley and wife against Ruth E. Wright and another to review a judgment theretofore entered in favor of the named defendant against the plaintiffs wherein such named defendant recovered title to certain real estate. From a judgment dismissing the bill, plaintiffs appeal.

Judgment affirmed.

Crane & Crane, of Dallas, for appellants.

Simon & Zimmerman, of Fort Worth, for appellees.

SPEER, Justice.

This is an action in equity, presented in form of a bill of review. Kork Kelley and wife Alliene Kelley filed the action naming as defendants Ruth E. Wright, a feme sole, and H. F. Hawkins, Sheriff of Wichita County, Texas. Sheriff Hawkins was named a defendant for the purpose of securing an injunction against him selling the property in controversy under an order of sale previously issued.

The petition seeks a review of the judgment theretofore entered by the same court in cause No. 36927-B, styled Ruth E. Wright v. Kork Kelley and Alliene Kelley, in which the plaintiff in that suit recovered title to Lot 4, Block 17 of the Southland Addition to the City of Wichita Falls in Wichita County, Texas.

The trial court sustained several special exceptions to the petition in the instant suit, the effect of which was to bar a recovery; petitioners refused to amend, and the court decreed that the defendants go hence without day. Petitioners reserved exceptions to the action of the court and gave notice of and have perfected this appeal.

Under our procedure, appellants' petition is necessarily lengthy because rather complete review of all the facts involved in the suit sought to be reviewed as well also the judgment entered at the former trial, is required.

The judgment in the original cause No. 36927-B pleaded by appellants discloses that all parties appeared; the parties there were the same as those in this case except Sheriff Hawkins; that no jury being demanded, matters of fact as well as of law were submitted to the court, and that plaintiff (Ruth E. Wright) should recover the land then in controversy. (The same land involved in the instant suit.) Title was awarded to that plaintiff by the judgment entered June 15, 1943.

The petition in this case which seeks a review of the former judgment, among other things, alleged: That appellants acquired title to the property in 1924 and went into possession; a loan company held a lien against the property and foreclosed in 1932 and bought it in at public sale; loan company agreed not to dispossess plaintiffs for a short time, giving them an opportunity to refinance the loan and repurchase from the loan company; that at that time plaintiff Kork Kelley and H. E. Clark and Rees Allen were associated together in business and they readily agreed to refinance the loan purchase; appellants made arrangements to refinance the loan through said Clark and Allen; appellants and Clark went to the loan company to close the deal on October 18, 1933, and because Allen was not accessible, Clark advanced the full amount of money necessary and advised the loan company to withhold making the deed until later when he would advise how it was to be made. However, without the knowledge or consent of either appellants or Clark, the loan company had on January 17, 1933 executed its deed of conveyance of the property to appellee Ruth E. Wright. That Clark carried on his books as a charge against appellants an item of $1245.50 as moneys owing by appellants until his death in November 1934 and that his administrators had since that time continued to carry same and had demanded payment thereof.

They further alleged that in 1938 appellee (Ruth E. Wright) claimed the land and filed suit against appellants to recover title; that after that suit had been dismissed by the court for want of prosecution, it was later reinstated upon appellee's petition for bill of review; that thereafter on June 15, 1943, judgment was entered against appellants and in favor of Ruth E. Wright for title and possession. That Ruth E. Wright (appellee here) never had any title to the property for the reason that while the deed from the loan company purported to pass title to her, none in fact passed except in trust for the use and benefit of appellants, for the reason the consideration therefor was the capital stock of the loan company purchased with money advanced by Clark to appellants.

Appellants also pleaded by reference to an attached certified copy of a resolution passed by the board of directors of the loan company that on January 17, 1933, in consideration of $4129.10 worth of the company's capital stock delivered by Allen & Clark, the president and secretary of the company should sell and convey the property and make deed therefor in the name of the company. (No reference is made in the resolution as to whom deed should be made.)

As an exhibit to, and made a part of appellants' petition by reference, the executors of the estate of H. E. Clark, deceased, had on November 20, 1934, sent to appellants a statement of purported indebtednesses owing by Kork Kelley to the estate. It contained six items covering the period between October 22, 1929, and January 24, 1934, all aggregating $2010.50; these items included one on October 18, 1932, for $1245.50 which appellants alleged was the money advanced by Clark to them with which to purchase the capital stock to be exchanged for the property in controversy.

There are further allegations in the petition to the effect that prior to the former trial in which judgment was entered for appellee in cause No. 36927-B, appellants had employed counsel to represent them at the trial and had delivered to him the data in their possession for use upon the trial evidencing the things herein complained of; but that their attorney was called into the army and turned the file over to another attorney to represent appellants at the trial; that the file became lost and could not be found prior to the trial and had never been found at the time of filing the Bill of Review; that after the trial but too late to present in a motion for new trial and prior to filing this action, they had found letters and documents which constituted newly discovered evidence, sufficient to prove their contentions of title to the property; that these discoveries were made by two or three all night vigilant searches and inspection of several boxes and a barrel of old papers in their possession and under their control. They allege they were not negligent in not sooner discovering said papers and documents.

Appellants also alleged that at the time of the trial in cause No. 36927-B, appellee and her counsel knew all the facts and circumstances which appellants expected to prove in defense of appellee's claim of title, and they deliberately concealed their knowledge thereof from the court for the fraudulent purpose of making it appear to the trial court that absolute title had vested in Ruth E. Wright by virtue of the deed from the loan company, contrary to the real facts as alleged by appellants in their petition.

Appellee (Ruth E. Wright) presented and urged a series of special exceptions to the sufficiency of the petition for review. The substance of these exceptions in the main go to the absence of any allegations in the petition showing any ground of equity which if true would entitle appellants to recover the land if tried again on its merits; that if appellants ever had a cause of action in said matter, it was shown by the petition to be barred by limitations and laches; that the reference made in the petition to a partnership between Allen and Clark and Kork Kelley and that no final accounting had ever been had between them was insufficient for indefiniteness because no allegations are made as to when such partnership or business association began or ended, the nature thereof nor that if an accounting should be had that it would show the estate of Clark would be indebted to Kork Kelley and for the further reason said allegations do not disclose what property interests were involved in any such alleged partnership or business association. Further exceptions were made to that part of appellants' petition concerning a purported agreement had with Clark to the effect that he (Clark) would have the loan company convey the land to the Kelleys, because such promise was not shown to be in writing and was in violation of the Statute of Frauds.

As above indicated, the court sustained the exceptions resulting in a refusal to allow the bill of review and entered a judgment for Ruth E. Wright and Sheriff Hawkins.

Appellants bring forward six points assigning errors to the action of the trial court sustaining appellee's exceptions. They are discussed separately in the brief, but as we view the record as a whole, we think it proper to discuss them all in a general way. We have concluded that none present reversible error.

Appellants insist that appellee's first exception to the petition was no more than a general demurrer, and that since Rule 90 Texas Rules Civil Procedure eliminates such pleas, it is not available to appellee at this time. We do not construe the pleading to be a general demurrer, but as specially excepting to the whole of appellants' petition because it "fails to show any grounds for equitable relief, either in the main plea or the alternative plea." It occurs to us that if a pleading which seeks equitable relief fails to show any grounds therefor this is about as much as could be said about it in pointing out its defects. We would be unwilling to announce a rule requiring a defendant to enumerate each and all of the requisites of a suit in equity for a bill of review and then point out that the petition attacked did not contain them. Let that be as it...