McCampbell v. Durst

• Decision Date: 18 March 1897
• Citation: 40 S.W. 315
• Parties: McCAMPBELL v. DURST et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

40 S.W. 315

McCAMPBELL v. DURST et al.¹

Court of Civil Appeals of Texas.

March 18, 1897.

Appeal from district court, Nueces county; J. C. Russell, Judge.

Action by Mary J. Durst and others against John S. McCampbell. Judgment for plaintiffs, and defendant appeals. Reversed.

This action was instituted originally in Cameron county, where the land involved is situated, on the 26th day of October, 1883. The record shows that the venue was changed to Nueces county, in the district court of which the judgment appealed from was rendered, but does not contain any copy of the proceedings by which the change was made. It appears that both parties appeared and participated in the trial without objection, and appellant, against whom the judgment was rendered, makes no question as to the jurisdiction of that court or as to the regularity of the change of venue. Because of the omission referred to, and because, it is said, the record does not contain a copy of a former answer of the defendant, which was supplanted before the trial by an amendment, appellees have moved to strike out the transcript and dismiss the appeal, but have not asked for a certiorari to bring up the other parts of the record. In the report of the former appeal of the case (73 Tex. 410, 11 S. W. 380) will be found a full statement from which its nature may be seen. It is, in its essential features, the same now as it was then, though there are some differences of detail, which will appear from our conclusions, but which do not materially affect the decision which we will make. The questions, which we regard as the decisive ones, arise out of the rulings of the court upon the defendant's (appellant's) exceptions and pleas asserting the defenses of stale demand and limitation of four and ten years. The decision of them makes it proper to state the general tenor of the petition and of the exceptions thereto. The amended petition, on which the cause was tried, showed by its allegations that plaintiffs, except J. B. Armstrong, are the heirs and devisees of James H. Durst, deceased, and that Armstrong has acquired the interest of Mortimer T. Durst, deceased, who was one of such heirs and devisees; that Mortimer T. Durst, in 1869, was appointed by the court, in Nueces county, administrator de bonis non of the estate of his father, James H. Durst; that defendant was his attorney and adviser in procuring the appointment and in the subsequent conduct of the administration; that on the ____ day of November, 1870, defendant, while acting in such capacity, contriving to defraud the devisees of their land, did, without any just or legal cause therefor, but in contravention of law, procure an order of the district court of Nueces county purporting to authorize and require the administrator to sell the land in controversy, without subdividing same as required by law; that defendant, acting as such attorney and still pursuing his purpose, conspired with Richard Jordan, and procured him to bid in the land for defendant, with the understanding that Jordan should not pay any part of the purchase price offered; that, by procurement of defendant, the sale was made January 1, 1871, in the name of the administrator, and the land was bid in by Jordan, in accordance with this agreement, at the sum of $697.84 for 61,992 acres; that defendant, on the ____ day of May, 1871, procured an order to be made by the court approving such sale; that defendant on the ____ day of May, 1871, prepared and procured to be signed and delivered by the administrator to Jordan a deed purporting to convey said land; that Jordan never paid to the administrator or to any one any part of the sum bid by him for the land, but took the deed in pursuance of such agreement with defendant; that on the ____ day of November, 1872, defendant, still acting as attorney for the administrator, procured an order to be made by the court approving the final account of the administrator and closing the administration; that on the 23d day of May, 1873, the defendant took from the administrator and from Mary J. Durst, the widow of James H. Durst, for herself and co-heirs and legatees, a receipt purporting to be for the proceeds of the sale of property belonging to said estate, but in fact for blank deeds to one-half of several tracts of land pretended to have been sold at the sale aforesaid, among them the said interest in the land in controversy, part of such deeds executed by Richard Jordan and part of them by another, one of which, signed by Jordan, dated May 31, 1873, purported to convey 30,996 acres of the land in controversy, with blank for the name of grantee, wherein some person, without her knowledge or consent, wrote the name of Mary H. Durst, now one of the plaintiffs, as Mary Armstrong, and caused same to be recorded in Cameron county; that the consideration of $3,500 recited in this deed was not paid, but that the deed was procured by defendant, without consideration, pursuant to his covinous scheme to defraud said devisees and to impose upon the confidence of his client; and that plaintiffs claim nothing under such deed; that on the 23d of March, 1875, defendant procured Jordan to execute to him a deed for the upper half of the 61,992 acres of land, for a pretended consideration of $5,000 not in fact paid. All of these things were alleged to have been done by defendant in pursuance of his scheme, first alleged, to defraud the devisees of the estate. The petition charges that the deeds have been put of record, and cast a cloud upon plaintiffs' title, preventing them from making disposition of their property, and causing them expense, labor, and annoyance; that defendant threatens to sue upon such deeds to recover half of the land, and to annoy and harass them in their possession, use, and enjoyment thereof, and they fear he will put his threats into execution. They offer to deliver up the deed to Mary H. Durst for such disposition as the court may decree, and pray that defendant be required to deliver up the deed from the administrator to Jordan, and that from Jordan to defendant, and that they be canceled and held for naught; that defendant be enjoined from suing on such deeds, and from molesting or interfering with plaintiffs in their enjoyment of their right, title, and possession of the land by virtue of such deeds; that the cloud upon the title be removed, and that they be quieted in their title. The exceptions to the petition raised the questions of limitation and stale demand referred to. No disability of any of plaintiffs was pleaded in any of their pleadings, in avoidance of limitation, nor are there any allegations that, for any time after the administrator's sale referred to, there was any concealment of the alleged fraud, or that plaintiffs did not at once learn of it.

The answer of defendant is too lengthy for even a summary of its allegations to be given. It admitted that Mary H. Durst and James W. Durst were minors when the transactions alleged in the petition occurred, but averred that they became of age, the former in 1876, and the latter prior to February, 1879. The answer set up the contract and power of attorney of April 22, 1870, as stated in the former opinion, and unnecessary to be restated here, and sought, under them, to show right to half the land in controversy. The allegations failed to show, however, that the services stipulated for in that contract had been rendered, or that the debts had been paid otherwise than by the procurement of the sale of the lands attacked by plaintiffs; and it was admitted that this was done for the purpose of releasing the land from the claims of creditors of the estate. Exceptions to all parts of the answer, which sought to establish a right under the contract, were sustained by the court; but such parts as sought to explain and sustain the administrator's sale, otherwise than as a performance of the contract, were allowed to stand. This general statement of the pleadings is thought sufficient for the purposes of the decision.

At the trial there was very little conflict in the evidence. The facts, as we find them, are that in 1869 Lovenskiold & McCampbell were engaged as attorneys by Mary J. Durst, the widow, and Mortimer T. Durst, the eldest son of James H. Durst, deceased, to represent them in procuring the removal of the executors of the estate, and the appointment of Mortimer as administrator de bonis non with the will annexed, and in the subsequent conduct of the administration by Durst. At that time, and during the whole of the proceedings narrated, Mrs. Durst and Mortimer, as well as all of the plaintiffs, resided in Austin, and the attorneys at Corpus Christi, where the administration was pending. Soon after the appointment of Mortimer the attorneys applied for an increase of an allowance which had been previously made to the widow, and secured action which raised such allowance to $2,464. On the 21st of October, 1870, they filed, in the name of the administrator, an exhibit and application for an order of sale of all of the lands of the estate, for the purpose of paying the debts of the estate. The exhibit showed the estate to be, as it in fact was, largely insolvent. On the 26th day of November, 1870, an order was procured by the attorneys for the sale of all of the land, including that in controversy,—enough of it to be sold for cash to pay the expenses of administration and the allowance to the widow, and the remainder on credit. On the day of sale, Lovenskiold & McCampbell arranged with Richard Jordan to bid in the lands, fixing minimum prices below which they should not be allowed to go to others, the understanding being that such purchases were to be made for the benefit of the attorneys and of those whom they represented, and that Jordan should not be required to pay the amount bid by him, but should hold the land subject to the orders of the attorneys, to be conveyed as they should direct. This understanding was carried...