Pegues v. Moss

• Decision Date: 15 February 1940
• Docket Number: No. 3906.,3906.
• Citation: 140 S.W.2d 461
• Parties: PEGUES et al. v. MOSS et al.
• Court: Texas Court of Appeals

140 S.W.2d 461

PEGUES et al. v. MOSS et al.

No. 3906.

Court of Civil Appeals of Texas. El Paso.

February 15, 1940.

Rehearing Denied May 9, 1940.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Ector County; Cecil C. Collings, Judge.

Suit by Emily Pegues and others against Paul Moss and another to establish an alleged equitable interest in certain property and to have a full accounting as to all rents derived therefrom, and to recover from the named defendant for alleged fraud, wherein defendants by cross-action set up a formal action in trespass to try title. Motion of defendant L. H. Wentz for an instructed verdict was granted. From judgment for defendants based on the instructed verdict and on verdict of jury as returned and accepted, plaintiffs appeal.

Judgment affirmed as to the other defendant, but reversed and case remanded as to the named defendant.

Slay & Simon, of Fort Worth, and Jesse R. Orth, of Odessa, for appellants.

Jones, Turney, Hardie, Grambling & Howell, of El Paso, W. W. James and John Fowler, both of Odessa, for appellee Moss.

Lee Jones, Jr., S. J. Brooks, and W. F. Nowlin, all of San Antonio, and A. W. Walker, Jr., of Austin (Brooks, Napier, Brown & Matthews and Jones & Fly, all of San Antonio, of counsel), for appellee Wentz.

PRICE, Chief Justice.

For a preliminary statement of this case we shall largely adopt that contained in the brief of appellants. Appellants were plaintiffs below and appellees defendants. The parties will be hereinafter designated as in the trial court, except when named specifically.

On August 18, 1930, W. F. Bates died intestate in Ector County, Texas. The following are the chief items, if not all, of the property possessed by him at his death:

1. The Curry Ranch, a tract of 4,800 acres described as Sections 28, 32, 34, 38, 40, 44, 46 and the north one-half of 48, all in Block 44, Township 2—South, T. & P. Ry. Co. Survey, in Ector County;

2. A residence in the City of Odessa, Texas, known as the old Bates' homestead;

3. An 870-acre tract;

4. Sixty-two shares of the stock of the Southland Life Insurance Company;

5. Shares of stock in the Citizens National Bank of Odessa, Texas, of the par value of $12,000.

Plaintiffs are the sole surviving heirs of W. F. Bates, deceased. Letters of administration were issued on the estate of W. F. Bates September 9, 1930, and the estate was continuously in administration from said date through January 2, 1937.

On June 29, 1936, L. S. Webb, as administrator of the estate of W. F. Bates, deceased, made a private sale of all of the property then belonging to said estate to the defendant Moss, and thereafter said Moss executed an oil and gas lease on Section 28 (a part of the 4,800-acre Curry Ranch) to an agent of defendant Wentz, and later such agent, by formal assignment, placed said oil and gas lease in the name of defendant Wentz.

This suit was instituted in the District Court of Ector County by plaintiffs against defendants Moss and Wentz, seeking to have their alleged equitable interest in and to those portions of the Curry Ranch, respectively, held by said defendants, fixed and established, and to have a full and complete accounting as to all rents and revenues derived therefrom, and generally against the defendant Moss for damages on account of the alleged frauds practiced by him. Plaintiffs' amended petition, upon which they went to trial, was divided into four alternative counts. It was alleged in this petition that defendant Wentz had purchased Section 28 with notice of the equitable right, title and interest of the Bates heirs therein, and he was not an innocent purchaser.

Defendant Moss, in his second amended answer, in addition to numerous special exceptions and a plea of not guilty and a general denial, specially alleged the manner and method in which he had acquired the Curry Ranch from the administrator, Webb, and he further alleged that he had thereafter instituted a suit in trespass to try title against the Bates heirs, among others, and obtained a judgment covering the Curry Ranch; he further pleaded several matters in estoppel.

Defendant Wentz answered by numerous special exceptions, by general denial and a plea of not guilty, and specifically denied that he had any knowledge of the Bates heirs' equitable interest, if any, in the property; but, on the contrary, he alleged that he had purchased on the basis of certain statements and representations made to him by the plaintiff Emily Pegues, and that he bought in good faith and for value, had drilled upon and developed said Section 28.

Defendant Moss and Wentz each, by cross action, set up a formal action in trespass to try title. Plaintiffs filed supplemental petitions in response to the answers and cross action of Moss and Wentz.

The trial was before a jury. At the termination of the testimony the court granted the motion for an instructed verdict of defendant Wentz. The case was submitted to the jury as between plaintiffs and defendant Moss on special issues. A verdict was returned answering some of the special issues submitted, and leaving a number of special issues unanswered. The trial court, on the basis of the instructed verdict in favor of Wentz and the verdict as returned and accepted, entered a judgment denying plaintiffs relief of any kind, and adjudging a recovery on behalf of both defendants on their cross action in trespass to try title.

Plaintiffs in due time filed motion for new trial and same was overruled. Appeal was duly perfected and the case is here for review.

In substance, it is urged by plaintiffs that the verdict was insufficient to support the judgment entered; that reversible error was committed in the manner of the drawing of the jury; that reversible error was committed in the court's ruling on plaintiffs' special exception to paragraph twenty-seven of the first amended answer of defendant Moss as to the contingent interest held by plaintiffs' attorney in any recovery; that the court erred in instructing a verdict in favor of defendant Wentz. These alleged errors are all raised by sufficient assignments supported by apt propositions.

In view of the fact that by counter proposition defendants, in substance, urge that, while not conceding error as to the matter of the court's ruling on the special exception or as to the drawing of the jury, if mistaken, it was harmless, for the reason that defendants were each entitled to an instructed verdict. We shall consider the assignments as to the drawing of the jury and the ruling on the special exception last. It might be well to note here the basis of the counter proposition that the judgment in favor of defendants should have been instructed is based largely on the judgment in favor of Moss against plaintiffs in the trespass to try title suit subsequent to the alleged accrual of the rights of plaintiffs. Defendants have other counter propositions as to said two matters which also will be discussed.

A recital of undisputed facts in the cause will aid in the consideration of the issues tendered by this appeal.

At the time of his death W. F. Bates was president of the Citizens National Bank of Odessa. After his death the bank continued its operation with Henry Pegues, then husband of plaintiff Emily Pegues, as president. This bank failed and was taken over by a receiver appointed by the Comptroller of the Currency. Sometime in the year 1931, subsequent to the closing of the bank, Crane County filed suit against the Citizens National Bank as principal, and George F. Bates, administrator of the estate of W. F. Bates, deceased, R. N. Henderson, Henry Pegues, F. A. Henderson, Mrs. Lula Satterwhite and Lee Satterwhite. The defendants, other than the bank, were sought to be held to the liability of sureties on a bond securing Crane County as to its deposits in said bank. Also, at about the same time, Crane County filed another suit against the Citizens National Bank, as defendant, George F. Bates, administrator of the estate of W. F. Bates, deceased, F. A. Henderson, Lula Satterwhite, Lee Satterwhite and Henry Pegues. In the suit first mentioned, on the 18th day of November, 1931, the court, upon a trial, entered judgment against all of the defendants, except Lula Satterwhite and Lee Satterwhite, in the sum of $27,186.13, to bear interest from that date at the rate of six per cent per annum. This recovery was for the use and benefit of the school funds of Crane County. A recovery over against the Citizens National Bank was decreed in favor of the defendants other than the Satterwhites. The judgment, insofar as same affected the estate of W. F. Bates, was ordered certified to the County Court; further ordered that the defendants against whom judgment was recovered be subrogated to the claim held by the county against Embry, receiver of the Citizens National Bank, and that the judgment be certified to said Embry, receiver, for allowance out of the pro rata payment of dividends accruing to Crane County.

In the other suit judgment was entered on the 18th day of November, 1931, in favor of the plaintiff against George F. Bates, administrator, F. A. Henderson, Lula and Lee Satterwhite, Henry Pegues and H. D. Cody in the sum of $25,943.84, said sum to bear interest from that date. The defendants were held as sureties on a bond given to Crane County securing its deposits in said bank. Judgment over was given the said defendants as to defendant Citizens National Bank, and provision was made for certification to the County Court and to the receiver of the Citizens National Bank.

Appeal was perfected from these judgments, but same were finally affirmed by the Supreme Court in the latter part of January or the first part of February, 1936.

At some time during the pendency of the litigation aforesaid Henry Pegues was appointed as administrator to succeed George F. Bates. In the litigation aforesaid defendant Paul Moss had represented the Citizens National Bank. During the...