Mott v. Maris

• Decision Date: 11 October 1894
• Docket Number: No. 543.<SMALL><SUP>1</SUP></SMALL>,543.<SMALL><SUP>1</SUP></SMALL&gt
• Citation: 29 S.W. 825
• Parties: MOTT et al. v. MARIS et al.
• Court: Texas Court of Appeals

29 S.W. 825

MOTT et al. v. MARIS et al.

No. 543.¹

Court of Civil Appeals of Texas.

October 11, 1894.

Appeal from district court, Galveston county; William H. Stewart, Judge.

Suit by Andrew Maris and others against M. F. Mott and others. Judgment for plaintiffs, and defendants appeal. Reversed.

Hume & Kleberg and Mott & Armstrong, for appellants. Austin & Rose, for appellees.

GARRETT, C. J.

The appellees, claiming to be the owners of outlot No. 66 in the city of Galveston, containing 10 acres of land, brought this suit in the district court of Galveston county on May 2, 1892, to enjoin the appellants from selling the said outlot at trustees' sale by virtue of a certain deed of trust executed on the 17th day of April, 1874, by W. L. Thomas, for himself and as surviving partner of the firm of W. H. Sellers, which had been dissolved by the death of Sellers, to Thomas M. Jack and Marcus F. Mott, as trustees, to secure certain notes of the same date in favor of Ball, Hutchings & Co. Thomas M. Jack having died, Mott had advertised the outlot for sale, when the plaintiffs filed their petition, and obtained a writ of injunction restraining said trustees and the defendants from selling said property until the further order of the court. Defendants demurred to the petition, and, among other special defenses, pleaded title to the property by limitation. Upon trial of the cause in the court below defendants' demurrers were overruled by the court, and the jury was instructed to return a verdict for the plaintiffs, except as to certain portions of the lot, which the evidence showed the defendants to be entitled to by limitation, and judgment was entered enjoining the sale as to the remainder. When this suit was brought there was already pending in the same court an action of trespass to try title, in which the plaintiffs in this suit were plaintiffs and some of the defendants herein and others were defendants. Said cause was tried at a term of the court subsequent to the term at which this was tried, and an appeal from the judgment therein rendered appears as No. 618 on the docket of this court. Sealy v. Maris, 29 S. W. 828.

The principal questions presented by this appeal are those of laches and stale demand as to the assertion by defendants of a right to sell under said deed of trust, whether or not plaintiffs should be required to discharge the debt as a condition on which they should recover, and the question of limitation as affecting the entire outlot or only parcels thereof. Other questions, however, have been raised and will be passed upon.

There is very little controversy about the controlling facts in the case. W. H. Sellers and W. L. Thomas were partners doing business in Galveston as commission merchants as early as 1871, and until some time in 1872, when the firm was changed to W. H. Sellers & Thomas, the partnership continuing under that name until the death of Sellers, in April, 1874. Sellers left an "independent" will, which was duly probated in September 1876, and in which his surviving wife, Harriet S. Sellers, was made sole executrix, devisee, and legatee. No proceedings were ever had in the probate court with respect to his estate. The lot in controversy was conveyed on January 1, 1872, by C. M. Dubois to W. H. Sellers, by deed duly recorded, conveying outlot 66, containing 10 acres of land. It was shown to be the partnership property of the firm of W. H. Sellers and of W. H. Sellers & Thomas. On the dissolution of the firm of W. H. Sellers & Thomas by the death of Sellers, the firm was indebted to Ball, Hutchings & Co. in a sum between $23,000 and $24,000, and, in order to secure $20,000 of said sum, W. L. Thomas, on April 17, 1874, executed to Ball, Hutchings & Co. two notes for $10,000 each, due one and two years after date, respectively, with 12 per cent. interest per annum, together with a deed of trust on said outlot 66, to Thomas M. Jack and Marcus F. Mott, as trustees. Said notes and deed of trust were signed, "W. H. Sellers, by W. L. Thomas, Surviving Partner of the Firm," and "W. L. Thomas." The deed of trust empowered the trustees, on default in payment of the notes, to sell the property after due advertisement, etc. Afterwards, on April 17, 1876, in consideration of an indebtedness of 14,000 pounds, sterling money, by the firm of W. H. Sellers & Thomas to Maclean, Maris & Co., of Liverpool, England, the said W. L. Thomas conveyed to Asa H. Willie and Charles L. Cleveland, as the duly-authorized agents of Maclean, Maris & Co., said "outlot number sixty-six (66), containing ten acres of land," by a deed duly recorded July, 1876. After the description of the property conveyed, said deed concluded as follows: "To have and to hold the said described lot of land unto the said vendees forever, subject, however, to a lien heretofore created in favor of Ball, Hutchings & Co., of the city of Galveston, to secure to them the debt of twenty thousand gold dollars, particularly set forth in a certain trust made for their benefit, and of record in the proper office in Galveston county; and, with the exception aforesaid, this vendor, for himself and as surviving partner of the said firm of W. H. Sellers, hereby covenants for himself and representatives, and, as such surviving partner, with said vendees, their heirs and assigns, that he has good right to make this conveyance, subject to the trust deed in favor of Ball, Hutchings & Co., above mentioned, that the same is free from all other incumbrances." Maclean, Maris & Co., by their agents, Willie & Cleveland, assumed control of said outlot, and collected rents for portions thereof leased to tenants, until November, 1879, when Ball, Hutchings & Co. took control. The property was worth much less than the amount of debt released by Maclean, Maris & Co., and not more than the debt in favor of Ball, Hutchings & Co. W. L. Thomas died in Galveston, in November, 1877. His estate was administered in the probate court of Galveston county. In 1879 the administrator inventoried the outlot in question as property in which his intestate had an interest. Ball, Hutchings & Co. probated their claim as secured by a deed of trust on said property, which amounted to $30,600, and afterwards, by regular proceedings in the estate, procured the sale of said property, and became the purchasers thereof at the sum of $7,000, which, less the expenses of said sale, was credited on the claim. The sale was confirmed by the court, and on October 3, 1879, M. Quin, the administrator of said estate, executed a deed to George Ball, John H. Hutchings, George Sealy, and John Sealy, composing the firm of Ball, Hutchings & Co., who thereupon took control of the property, with the knowledge and acquiescence of Willie & Cleveland, agents for Maclean, Maris & Co., from about November 1, 1879. The estates of W. L. Thomas and W. H. Sellers were insolvent. The claim of Ball, Hutchings & Co. remains unsatisfied, except as to the credit thereon by their purchase of the property at the probate sale, and belongs to the present firm of Ball, Hutchings & Co., at whose request the trustee, Mott, had regularly advertised the property for sale.

In the conveyances of said outlot it has been conveyed as an entire lot. It was laid out by the Galveston City Company as "Outlot 66." It was described in the deed of trust as "Outlot number sixty-six, containing ten acres of land," and was so described in the inventory and in the administrator's deed. The deed to Willie & Cleveland for Maclean, Maris & Co. contains the same description. In 1875, ...