Loving v. Clark

• Decision Date: 02 March 1921
• Docket Number: (No. 1758.)
• Parties: LOVING v. CLARK et al.
• Court: Texas Court of Appeals

228 S.W. 590

LOVING v. CLARK et al.

(No. 1758.)

Court of Civil Appeals of Texas. Amarillo.

March 2, 1921.

Appeal from District Court, Montague County; C. R. Pearman, Judge.

Action by Una and Dell Clark against C. D. Loving. From a judgment for plaintiffs, defendant appeals, and plaintiffs assign cross-errors. Affirmed.

W. T. Russell, of Montague, for appellant.

Spencer & Jameson and W. H. Hunt, all of Montague, for appellees.

HUFF, C. J.

Lot 3, block 16, in the town of Nocona, was purchased by S. D. Clark, September 22, 1892. Agnes B. Clark was then the wife of S. D. Clark, and the trial court finds, and the evidence supports the finding, that the lot was the community property of Clark and his then wife, Agnes B. Clark. The appellees, Una and Dell Clark, are the only children, the fruits of that marriage, and the only heirs of Agnes B. Clark at the time of her death, which occurred in October, 1900. S. D. Clark died January 15, 1904. The record shows after the death of his first wife he married the second time. Agnes B. Clark died intestate. S. D. Clark left a will. The third clause of the will directs that the executor pay to his daughters, Una and Dell Clark, the community interest of their mother, Agnes B. Clark, deceased, out of his present estate holdings as near as could be figured out and approximated at the time of her death. "The community interest of said Agnes B. Clark, my former wife, being kept by me with my share of said community estate, undivided." By the fourth clause he gave the appellees, his two daughters, one-third of his personal property, and directed the executor to convert their share in the personal property into real estate. By the fifth clause he gave to Una and Dell Clark "all my real estate" to be held by them each one-half, "and I direct that my executors see that the titles to all lands bought by him for them and devised to them, either under this item or item 4th, be perfect and good in them and that all deeds and conveyances to them be so worded and written that they, nor either of them, can sell or convey said land but that same may descend after their death to their heirs respectively, providing they may partition same between themselves." The sixth clause makes provision for the second wife, giving her a one-third interest in his personal property. The seventh clause makes provision for continuing a partnership with his brother, Robert B. Clark, in a business in the town of Nocona. The eighth clause:

"I further direct that my executor shall, as early as convenient, invest all the funds of my estate, belonging to my said daughters, Una and Dell Clark, in good real estate, farm lands preferably, and hereby authorize him to sell any city real estate that belongs to my estate and invest the proceeds in farm lands for my said daughters on said terms and provisions as hereinbefore directed."

The ninth and tenth clauses are not involved in this case. The eleventh clause:

"I hereby appoint Robert B. Clark, my brother, to be executor of my last will and testament, whose duty it shall be to perform and carry out the provisions of this will."

He also appointed his father for the purpose only of collecting insurance due the two daughters, but the brother was appointed for all other purposes. There was no clause constituting R. B. Clark an independent executor without bond, and the record shows that the will was probated and R. B. Clark was appointed executor, giving bond September 6, 1904. At the same term of court it appears R. B. Clark was appointed guardian of the persons and estate of Una and Dell Clark, and the lot in question, No. 3, block 16, was inventoried as belonging to their estate. On the 18th day of March, 1905, R. B. Clark, as executor, conveyed a one-half interest in lot 3 to J. G. Clark, for the recited consideration of $375 cash. And on the 28th of March, 1905, J. G. Clark conveyed the half interest in the lot to R. B. Clark, for a recited consideration of $375, evidenced by a note. On the 12th day of September, 1908, R. B. Clark and wife, Mollie Clark, conveyed to C. D. Loving, appellant, an undivided half interest in the lot for a recited consideration of $1,375. On the same day R. B. Clark, as executor, executed a deed to C. D. Loving, to all of lot 3, for a recited consideration of $2,750. This deed recites that the will of S. D. Clark was probated; that R. B. Clark was appointed executor, and that the will authorized and empowered the executor to sell and convey real estate, either at public or private sale as to him should seem best, and to make deed, and as such executor by virtue of the power and authority of the will, and the payment of the sum, sell and convey lot 3, block 16, to Loving. The deed was signed by R. B. Clark, executor. The appellees, after they reached 14 years of age, made selection of a guardian, and asked that R. B. Clark be removed as such. This application was made at the March term, 1909, of the county court, and was thereafter granted. At the June term, 1909, R. B. Clark, as executor, filed his account, which occupies several pages of the record. On the 7th day of October, 1909, the account was, by order of the court, approved as the final account of the executor and in the order it recites:

"It further appearing to the court that on the 12th day of September, 1908, by authority given him in sections Nos. 5 and 8 of the will of S. D. Clark, deceased, R. B. Clark, as executor in the will of S. D. Clark, deceased, sold and conveyed by deed to C. D. Loving, lot 3, in block 16, as laid down and described on the official plat of the town of Nocona, Tex., for $2,750. That said money was applied to the payment of indebtedness against the farm lands given Una and Dell Clark, in said will, in compliance with directions therein contained. That said heirs have received the full benefit thereof. It is therefore ordered, adjudged, and decreed by the court that the said sale to the said C. D. Loving be, and the same is hereby, confirmed, and said sale in every way approved and said executor and his bondsmen discharged from this trust."

R. B. Clark, also as guardian of the person and estate of appellees, at the same term presented his account as guardian, which was approved. In the report as guardian it was reported by R. B. Clark that lot 3 had been sold to pay off an indebtedness against the estate of his wards and to clear certain farm lands, and that the money was so applied, and they have received the full benefit thereof. "Said sale was made to C. D. Loving under authority given me in sections Nos. 5 and 8 in the will of C. D. Clark, deceased, as his executor." Clark reported in his final account in the executor administration the transaction substantially as he did in his guardian's report. The trial court finds there was no order of sale of the lot made by the probate court in either the administration under the will or in the guardianship. The facts show there was none. In fact, it would appear that Clark, after qualifying as executor and guardian, making out and returning an inventory of the estate, administered both estates without direction from the probate court, and made no report except upon final settlement. The appellees, Una and Dell Clark, brought this action in the form of trespass to try title against Loving for lot 3. The appellant Loving answered by general denial and plea of not guilty, and specially answered that he held a valid title from R. B. Clark, executor and guardian, respectively, of the estate of S. D. Clark and the estate of plaintiffs; that he paid full value therefor, bought the same in good faith, and that the deed to him was fully approved by the court, and stands as an adjudicated matter, and it is not subject to collateral attack, as sought in this suit; and that plaintiffs received the full benefit of the proceeds of said property. He set out and pleaded the taxes and insurance that he had paid on the property and some other expenses, and further alleged:

"In the event the plaintiff should recover the building of him or any part thereof, he is entitled to an adjustment of equities between him and the plaintiff; besides, he paid for the said property the sum of $2,750, and has been out the use and revenues of his money in the event the court finds that the plaintiffs are entitled to recover the property, which said money was worth to him 10 per cent. per annum, and, further, since he has had possession of said building he has received rents therefrom of $2,677.60, all of which he says should be considered and the equities adjusted between the plaintiffs and this defendant, in the event of their recovery as aforesaid; and, further, having bought the said property in good faith and having paid $2,750 therefor, plaintiffs, before they can recover, must refund to defendant said sum."

The plaintiffs answered by supplemental petition, pleading that the property was the community property of S. D. Clark and his wife, Agnes D. Clark, and claimed an interest of one-half by reason thereof, through their mother. The case was heard before the court without a jury, who rendered judgment for the appellees for a one-half undivided interest in the property and for partition, and ordered the same sold and a division made of the proceeds. There was an agreement entered at the trial, as follows:

"It is agreed that C. D. Loving bought the property in controversy in good faith, but not as an innocent purchaser, and paid the consideration therefor shown in the deed to him, and that the rents during the time he has owned it is $3,250.60, and that he has paid for taxes, insurance, and improvements $1,019.64."

The trial court also found that Loving paid the recited consideration, and that about $800 of this amount was used in paying off indebtedness against some farm lands belonging to the estate of S. D. Clark and the minor heirs.

The appellant, by assignments of error, attacks the action of ...