Perkins v. Terrell

• Decision Date: 30 April 1919
• Docket Number: (No. 1539.)
• Citation: 214 S.W. 551
• Parties: PERKINS v. TERRELL.
• Court: Texas Court of Appeals

Page 551

214 S.W. 551

PERKINS v. TERRELL.

(No. 1539.)

Court of Civil Appeals of Texas. Amarillo.

April 30, 1919.

Rehearing Denied June 4, 1919.

Error from District Court, Castro County; R. C. Joiner, Judge.

Suit by C. J. Terrell against Mrs. Nannie Perkins. Judgment for plaintiff, and defendant brings error. Affirmed.

Carl Gilliland, of Hereford, and Graves & Houtchens, of Ft. Worth, for plaintiff in error.

Kinder & Russell and Williams & Martin, all of Plainview, and Mark Cowsert, of Dimmitt, for defendant in error.

BOYCE, J.

Appellee, C. J. Terrell, brought this suit for himself and for the use and benefit of W. O. Gillespie, to rescind a contract for the sale of certain real and personal property, to cancel deeds executed in pursuance to the preliminary contract of sale, and to recover the land and personal property delivered to the defendant thereunder. Judgment was rendered for the plaintiff on a trial before a jury.

The one assignment presented by appellant on this appeal asserts that the court erred in overruling the appellant's general demurrer to the plaintiff's petition, on the grounds: First, that it appears therefrom that W. O. Gillespie is a necessary party to the suit; and, second, that the petition does not allege that demand for rescission was made by the plaintiff before the institution of the suit. It will therefore be necessary to state only so much of the pleading as is necessary to a consideration of these two questions.

It is alleged in the petition that the plaintiff, C. J. Terrell, owned section 59, block 10 T, in Castro county; that his son-in-law, W. O. Gillespie, owned the S. W. 1/4 of section 54, block 10 T; and that the plaintiff and the said Gillespie also owned and were in possession of certain personal property— cattle, horses, mules, farming implements, etc. The personal property is particularly described, but it does not appear whether the ownership thereof by the said plaintiff and Gillespie was joint or several. It is further alleged that the said Gillespie had authorized the plaintiff to trade and sell all of said property, and that the plaintiff entered into a contract in his own name for the sale and conveyance of said property to the defendant, in consideration of $16,000 in notes, executed by a third party and secured by vendor's lien on certain land in Webb county, Tex.; that plaintiff was induced to make said contract by fraudulent representations made by the defendant and her agents to him, concerning facts that determined the value of said notes; that said notes were as a matter of fact practically worthless, while plaintiff was induced to believe they were good; that in fulfillment of the executory contract induced by such fraud, and before discovery thereof, the plaintiff and the said W. O. Gillespie conveyed to the defendant by deed the said two tracts of land owned by them respectively; that the plaintiff transferred to the defendant title and possession of all of said real and personal property. The plaintiff tendered to the defendant the notes and other consideration received in such trade, and prayed for judgment for the title and possession of said real and personal property, for the cancellation of said deeds, etc. The petition, after stating the ownership of said one-quarter section of land to be in Gillespie, contains this clause:

"For whose use and benefit he is suing herein for such property as may have belonged to said Gillespie and which was included in the deal and trade hereinafter mentioned."

No other statement of any authority from the said Gillespie to bring the suit is made, nor is there any statement as to why the said Gillespie did not join in the suit in his own name. The only allegation as to demand for rescission is contained in this paragraph of the petition:

"(7) That the defendant, though often requested, has failed and refused, and still fails and refuses, to deliver possession and title to the aforesaid property which he has been swindled out of."

Had the suit been to cancel the executory contract made in the plaintiff's name only, it would probably not have been necessary that Gillespie be a party thereto; but this contract was executed, and, while there is a general allegation that plaintiff transferred the title and possession of all of the real and personal property to the defendant, it is specifically alleged that the said Gillespie was, at the time of the making of the contract, the owner and in possession of the S. W. 1/4 of said section 54, and was induced by the defendant's fraud "to convey by deed said quarter section to defendant." It appears, we think, that the purpose of the suit was to recover Gillespie's property, as well as plaintiff's, and to cancel a deed executed by Gillespie. We think, therefore, that the said Gillespie was a necessary party to the suit. Hurst v. Knight, 164 S. W. 1072; Monday v. Vance, 11 Tex. Civ. App. 374, 32 S. W. 559; C. J. vol. 9, pp. 1225-1227; Black on Cancellation & Rescission, vol. 2, § 657. But, if it were proper for the plaintiff to conduct the suit for the use and benefit of Gillespie, then the said Gillespie was a real party to the suit and this requirement would be met. McFadin v. MacGreal, 25 Tex. 79: Clark v. Hopkins, 34 Tex. 141; G. H. & S. A. Ry. Co. v. Freeman, 57 Tex. 156; Smith v. Mosley, 74 Tex. 631, 12 S. W. 748. The inquiry, then, is whether a suit of this kind could be brought at all by one party for the use and benefit of another, and how the authority for bringing such suit should be shown, and how and when such authority may be questioned by the defendant. The provisions of article 1894, R. S., assume that suits may be brought by one person for the use and benefit of another, but this article itself does not attempt to prescribe when such suits may be brought, but simply recognizes the practice and provides for procedure in such cases in certain contingencies. So that the law which will determine whether such practice is proper in any particular case is to be found elsewhere than in this provision of the statute. The most common instances of suits by one for the use of another occur in cases where the contract is in the name of one and suit is brought by him though some one else may have an interest in it, or in cases where the legal title to the cause of action is in the...