Levy v. W. L. Moody & Co.

• Decision Date: 17 March 1905
• Citation: 87 S.W. 205
• Parties: LEVY et al. v. W. L. MOODY & CO.
• Court: Texas Court of Appeals

87 S.W. 205

LEVY et al. v. W. L. MOODY & CO.

Court of Civil Appeals of Texas.

March 17, 1905.

Appeal from District Court, Montgomery County; L. B. Hightower, Judge.

Suit by L. W. Levy and another against W. L. Moody & Co. From a judgment in favor of defendant, plaintiffs appeal. Affirmed.

James B. & Charles J. Stubbs, for appellants. Nugent & Foster and Dean, Humphrey & Powell, for appellee.

PLEASANTS, J.

Appellees, W. L. Moody & Co., and the firms of J. Wahrenberger & Co. and Sass & Cohen, were creditors of E. J. Minock at the date of the death of his wife, Georgia B. Minock, which occurred in 1895. After the death of Mrs. Minock the creditors above named obtained judgment upon their respective claims, and executions were issued thereon and levied upon the lands in controversy in this suit. Prior to the issuance of these executions, E. J. Minock applied for and received from the county court of Montgomery county letters of administration upon the estate of his deceased wife. The inventory filed by him in said estate on June 1, 1896, lists an undivided one-half interest in said lands, and certain vendors' lien notes of the aggregate face value of $800, as the property of said estate. Pending the levy under these executions and prior to the sale thereunder, appellees acquired title to the Wahrenberger & Co. and the Sass & Cohen judgments. The land levied upon was the community property of E. J. and Georgia B. Minock, and consisted of 721 acres in the W. C. Clark survey, and 640 acres in the George Taylor survey, in Montgomery county. Before the death of Mrs. Minock 505 acres of the Clark land had been sold by Minock, and he had received, in part payment of the purchase money therefor, vendors' lien notes of the aggregate face value of $1,900. The deeds from Minock to the several purchasers of this 505 acres were not recorded at the time the executions above mentioned were levied. Several of the vendors' lien notes above mentioned, of the aggregate face value of $1,100, were, at the date of this levy, held by Jake Davis & Co. to secure a note in their favor, for $656.15, executed by E. J. Minock, with interest thereon at 10 per cent. per annum from January 7, 1896. On November 28, 1896, appellant presented a claim to Minock, as administrator of his wife's estate, for $1,164.85. This claim, which was for a community indebtedness of Minock and wife, was allowed by the administrator and approved by the county court. At the same time a claim for $65, due Dr. J. E. Collier for medical attention to Mrs. Minock during her last sickness, was also approved. This claim was purchased by appellant shortly after it was approved. Such being the status of the claims of the parties, appellees agreed with Minock upon a settlement of their claims. The terms of this agreement were that Minock would turn over to appellees the $800 in vendors' lien notes, and that the lands upon which the levies had been made should be sold thereunder; appellees agreeing that if the proceeds of such sale or value of the land, in event they became the purchasers, was not sufficient to satisfy the judgments held by them against Minock, they would not annoy him by issuing any further executions on these judgments. It was further agreed that appellees would settle the note due Jake Davis & Co., and thereby secure title to the $1,100 in vendors' lien notes held by Davis & Co. for the security of their note. This agreement was fully carried out by the parties. The vendors' lien notes for $800 were delivered to appellees by Minock, and thereafter on the first Tuesday in April, 1897, the lands involved in this suit were sold by the sheriff of Montgomery county under the execution issued on the judgment in favor of Sass & Cohen, and appellees became the purchasers, their bid being in the sum of $375, which sum was credited on their judgments against Minock. The deed from the sheriff to appellees was recorded on May 17, 1897, and appellees at once took possession of the land, and have since held continuous adverse possession thereof, claiming to be the owners, and have paid all taxes thereon as they accrued. The vendors' lien notes for $800, which were payable to Minock, were not indorsed by him, but appellees have had possession of same since they were turned over to them by Minock under the agreement above stated on March 23, 1897, and have claimed absolute ownership thereof.

As before stated, 505 acres of the 721 acres in the Clark survey had been sold by Minock before the levy of the executions, and the vendors' lien notes delivered to appellees were for the unpaid purchase money of this 505 acres. Of the 640 acres in the Taylor's survey, Minock only owned an undivided one-half, and out of this one-half he retained a homestead of 200 acres, leaving only 120 acres. Appellees, therefore, could only take title under the sheriff's deed to 216 acres in the Clark, and 120 in the Taylor, survey. The value of the land in the Clark survey at the time the sale was made to appellees was $4 per acre, and that of the 120 acres in the Taylor survey $1.50 per acre. At the time this land was sold to appellees the amounts due on the judgments held by them against Minock were as follows: On the Wahrenberger judgment $112.72, on the Sass & Cohen judgment $311.26, and on the judgment in favor of appellees $1,398.36, with interest from November 23, 1896.

On July 10, 1896, Minock, as administrator of the estate of his wife, made application to the county court for an order authorizing him to sell the lands involved in this suit, for the purpose of paying community debts and for the support and maintenance of the minor children of the deceased. This application was granted, and the sale ordered. No sale seems to have been made in pursuance of this order, and after Minock had turned over to appellees the vendors' lien notes for $800, and agreed that the lands should be sold under the executions issued on the judgments held by appellees, appellant instituted proceedings in the county court to have the administrator removed because of his failure to pay appellant's debt and his appropriation of the estate to pay other debts which had not been approved by the court. In response to this application, the county court entered an order removing the administrator. Minock appealed from this order to the district court of Montgomery county. It does not appear from the record that the district court ever tried the issue upon which the case was taken to that court on appeal. After the appeal to the district court, the administration of the estate was conducted under the orders of that court, and the claim of appellant to the property involved in...