O'Meara v. Moore, 8189.

• Decision Date: 15 March 1944
• Docket Number: No. 8189.,8189.
• Citation: 178 S.W.2d 510
• Parties: O'MEARA et al. v. MOORE, Judge, et al.
• Court: Texas Supreme Court

Page 510

178 S.W.2d 510

O'MEARA et al. v. MOORE, Judge, et al.

No. 8189.

Supreme Court of Texas.

March 15, 1944.

Original proceeding by D. A. O'Meara, guardian of certain minors, and others for a writ of mandamus to compel W. W. Moore, a district judge, to render and enter a judgment sought by relators in their motion for judgment in their pending suit against Mrs. M. L. Brown and others to recover title to and possession of certain land.

Application for writ denied.

A. D. Dyess, of Houston, for relators.

Fogle & Levy and Lewis Fogle, all of Houston, for respondents.

TAYLOR, Judge.

Mrs. Ruth Maness was the mother of four minor children at the time of the death of her husband, Luther Maness. The husband was accidentally killed and as a result of the accident his wife and four minor children procured judgment (by compromise) in one of the district courts of Harris County, $1,000 of which was prorated to the children and deposited with the clerk of the court. Thereafter the children's fund was withdrawn from the registry of the court in the manner hereafter stated. Mrs. Maness remarried, her second husband being D. A. O'Meara.

Mrs. Maness-O'Meara, joined pro forma by her husband, in his individual capacity and also as guardian of the minor children, filed this suit against Mrs. M. L. Brown, a feme sole, J. F. Taylor and the Sun Oil Company, seeking to recover title and possession of a quarter section of land conveyed in 1922 by Perry V. Cook to Mrs. Maness' first husband. Cook intervened in the suit, complaining of Mrs. Brown and the other defendants, Taylor and the Oil Company seeking recovery of the land. His petition in intervention was filed by the attorney who was then representing plaintiffs, Mrs. Maness and her husband, D. A. O'Meara, in their individual capacities, and Mr. O'Meara in his capacity as guardian of the minor children of Mrs. Maness by her first husband. Plaintiffs' attorney after filing Cook's petition of intervention, amended the original petition filed by him on behalf of plaintiffs, respectively, in the capacities stated, praying as in the original petition, and continued throughout the trial to represent, and now represents as attorney for petitioners here (plaintiffs and intervenor below) in their application for writ of mandamus.

Plaintiffs' original petition is not included in the transcript before us. They alleged in their first amended original petition against Mrs. Brown and intervenor Cook that title to the land became vested in Mrs. Brown as trustee for the use and benefit of Mrs. Maness and the minor children at the time the $1,000 belonging to the children was withdrawn from the registry of the court; that the condition of the conveyance of the land by Cook to Luther Maness above referred to was $1,700 cash and $5,500 evidenced by 15 vendor's lien deed of trust notes payable to Cook for the sum of $300 each and one note (No. 16) for the sum of $1,000, payable to Cook, all constituting a series of notes payable one each year for 15 consecutive years, the note for $1,000 being payable 30 days from date; that as a further consideration for the conveyance Luther Maness assumed payment of the balance of a $2,400 note signed by Cook which had been acquired by the Land Bank, and which, together with the lien securing payment thereof, constituted a first lien against the land superior to any claim of right held by Cook in and to the land.

Plaintiffs alleged that the $1,000 note was paid by Luther Maness to Cook, but that none of the 15 smaller notes were paid prior to the death of Maness on March 20, 1932; that Cook on October 3, 1933, purchased the land under his deed of trust foreclosure sale.

Plaintiffs alleged also that the Federal Land Bank loan had been made through Katy Farm Loan Association which held a lien against the land for about $130 "on account of taxes and perhaps other items paid by the Association"; that the Association foreclosed its lien (superior to Cook's) and on February 5, 1936, purchased the land at the foreclosure sale; and further alleged that the Association conveyed the land to Mrs. Brown on March 4, 1936, upon consideration of her note for $130 and the assumption by her of the balance due the Land Bank.

Plaintiffs alleged that Mrs. Brown, by becoming one of the requisite sureties for Mrs. Maness in procuring for her another surety (for the consideration of $100), enabled Mrs. Maness to withdraw the children's $1,000 fund from the registry of the court and use same to the extent of $831.30 in payment of the arrears due the Land Bank; that the funds thus withdrawn by Mrs. Maness were, to the extent stated, paid by her on November 21, 1935, to the Land Bank on its then past-due first lien indebtedness; that thereafter Mrs. Brown represented to Mrs. Maness that she (Mrs. Maness) had done a foolish thing in withdrawing the children's money and paying it on the indebtedness to the bank in view of Cook's having foreclosed his lien, and advised Mrs. Maness to inform the officials of the Land Bank that the $831.30 paid by Mrs. Maness was paid out of the funds of her minor children, and that it was Mrs. Brown's money that was paid and that Mrs. Brown was entitled to an assignment of the bank's lien to the extent of that amount. Plaintiffs alleged that the bank upon being so informed by Mrs. Maness, issued and delivered to Mrs. Brown an assignment of its first lien to the extent of $831.30 upon Mrs. Maness' request that it do so; that thereafter Mrs. Maness executed a quitclaim deed to Mrs. Brown on behalf of herself and as next friend of her minor children, but that it was executed without consideration and was ineffectual to pass the title of the children, Mrs. Maness never having qualified as their guardian; and that the quitclaim deed was delivered to Mrs. Brown for the sole purpose of placing in her the legal title to the land. Plaintiffs alleged that Mrs. Brown agreed to hold the land for the use and benefit of Mrs. Maness and her children.

Plaintiffs alleged further, in substance, that the foreclosure by the Farm Loan Association of its lien above referred to was procured by Mrs. Brown under an agreement with the Land Bank and with the Association that it (the Association) would sell and convey the land to her.

Plaintiffs alleged also that certain rents and revenues had been received from the land on account of the execution of two oil leases thereon, the payment of delay rentals, and the sale of an easement for a pipe line across the land; that Lewis Fogle was Mrs. Brown's attorney and claimed to have advanced certain moneys in payment of installments due the Land Bank, and taxes, the aggregate amount being in excess of $3,000. Then followed plaintiffs' statutory allegations in trespass to try title.

Mrs. Brown answered, among other things, to the effect that Cook's foreclosure of his lien divested Mrs. Maness-O'Meara and her children of all title and interest in the property and that plaintiffs' allegations that Mrs. Maness had conveyed the land to Mrs. Brown for the purpose of defrauding Cook and to save the land for plaintiffs estopped them from recovery thereof. She pleaded against plaintiffs a general denial, not guilty, and a special denial of any agreement made by her to hold the land in trust for Mrs. Maness and her children. She alleged also the consideration paid by her for the land, the statute of frauds, the statutes of limitation (3, 4 and 5 years) the payment of taxes and indebtedness secured by liens on the land and the making of improvements and repairs thereon.

Mrs. Brown pleaded in answer to the allegations of intervenor Cook that all title and interest in the land was divested out of him by the...