Peters v. Chandler

• Decision Date: 13 April 1899
• Citation: Peters v. Chandler, 51 S.W. 281 (Tex. App. 1899)
• Parties: PETERS et al v. CHANDLER.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

51 S.W. 281

PETERS et al v.CHANDLER.¹

Court of Civil Appeals of Texas.

April 13, 1899.

Appeal from district court, Polk county; L. B. Hightower, Judge.

Action by D. S. Chandler against Peters & Willis.From a judgment of nonsuit entered on motion of plaintiff, defendants appeal.Affirmed.

Hill & Hill, for appellants.F. Campbell, for appellee.

PLEASANTS, J.

Appellee sued appellants on the 23d day of April, 1896, in the district court of Polk county, to cancel certain deeds to lot 1 and a portion of lot 2, and to lots 7 and 8, in block 21 in the town of Livingston, and for restoration of said property to plaintiff, and for rents of same, and damages for injury alleged to have been done to the property by the defendants.The averments of the petition are as follows:

"On August 30, 1888, and long prior to that time, plaintiff owned and possessed, in fee-simple title, lots Nos. 1, 2, 7, and 8 in block 21 in the town of Livingston, in Polk county, Texas.That on the ____ day of ____, 189_, plaintiff conveyed so much of lot No. 2, as aforesaid, as 26 feet front on Main street by 107 feet eastward, out of N. W. corner of said lot No. 2, so as to include the building thereon.That heretofore, to wit, on August 30, 1888, plaintiff executed and delivered a trust deed of all of said lots to one W. H. Howard, of the city of Galveston, in Galveston county, Texas, except that portion of lot No. 2 heretofore described, together with numerous other pieces of real estate, to secure the payment of certain indebtedness due by plaintiff to sundry parties.That by the terms of said trust deed it was provided that, in event of foreclosure and sale for the satisfaction of said indebtedness, all of said property described in said trust deed, of which the lots aforesaid was a part, should be sold before the court-house door in the county of Galveston, state of Texas.That said trust deed was duly recorded in the Trust-Deed Records of Polk county, Texas, and that the purchaser thereunder, and the defendant herein, had full knowledge, actual and constructive, thereof.That heretofore, to wit, on the 29th day of October, 1891, the said W. H. Howard resigned this trust.That on October 30, 1891, Weis Bros., party of the third part, as named in the trust deed heretofore mentioned, appointed, by an instrument in writing, Henry J. Labatt, substitute trustee, to execute said trust.That on January 5, 1892, said substitute trustee, Henry J. Labatt, in violence of the terms of said trust deed, and without authority from plaintiff, proceeded to make a pretended sale of said lots heretofore described, before the court-house door of Polk county, Texas.That at said pretended sale one Leopold Weis bid said lots in, with numerous tracts and parcels of land, for the sum of $1,200.That said pretended bid was purported to be the highest and best bid therefor, and that said bid did not exceed 20 per cent. of the value of said property.That the said price was wholly inadequate, and not near the value of the property.That this property in controversy was about one-tenth in value of the whole property, and sold for $1,200, and that the same was sold in bulk, and the price of the property, as sold at said pretended sale, was only $120.That in fact no consideration valid in law passed from the said Weis to the said Henry J. Labatt.That heretofore, to wit, on March 17, 1892, the said Leopold Weis conveyed by special warranty deed all of said lots 1, 2, 7, and 8, as heretofore described, to one J. W. Hammond, for a purported consideration of $750.That in fact no consideration valid in law passed from the said Hammond to the said Weis.That on February 28, 1894, the said J. W. Hammond conveyed, by special warranty deed, for a purported consideration of $800, to one W. D. Willis, all of said lots heretofore described.That in fact no consideration valid in law passed from the said Willis to the said Hammond.That on July 2, 1894, the said W. D. Willis conveyed by special warranty deed, for the purported consideration of $100 cash, and $700 in notes of $58.33 1/3 each, all of said lots heretofore described, to Peters & Willis.That in fact no consideration valid in law passed from the said defendants, Peters & Willis, to W. D. Willis.Plaintiff alleges and here charges that said pretended sale by Henry J. Labatt, substitute trustee, before the court-house door of Polk county, was in violence to the terms of said trust deed, and conveyed no title; that defendants bought said lots with full knowledge of all the facts herein alleged; that the said lots are improved, and the annual rental therefor is of the value of $300; that defendants, Peters & Willis, have wantonly torn down and removed a building on said property of the value of $1,000.Premises considered, plaintiff prays service; that the attempted sale by Henry J. Labatt to Leopold Weis, and the deed from Leopold Weis to J. W. Hammond, and the deed from J. W. Hammond to W. D. Willis, and the deed from W. D. Willis to Peters & Willis, be set aside, canceled, and held for naught, be declared null and void, and discharged from the records, and that the title of plaintiff in and to said lots, and all of them, be confirmed and established as against the said defendants, or any of them, or any person claiming through or under them, and that he have judgment for the land sued for, and writ of restitution; that he have his judgment for the value of the rentals thereon, for the value of the building torn down and destroyed, for all costs of this suit, and for general relief.And plaintiff will, in duty bound, ever pray."

To this petition the defendants filed the following answer December 4, 1896:

"And, answering to the merits, defendants Peters & Willis, deny, all and singular, the allegations in plaintiff's petition contained, except as in this answer admitted, and of this they put themselves upon the country.And, by way of further answer, defendants, Peters & Willis, allege the facts to be: That theretofore, to wit, on the 30th day of August, 1888, plaintiff was indebted over $12,000 to Weis Bros., of Galveston, Texas, and sundry other parties, payable at the office of Weis Bros., known as the `pool creditors.'That, on the day and year last named, to secure the payment of said indebtedness, he made, executed, and delivered to W. H. Howard, trustee, for the use of Weis Bros. and his other named pool creditors, a trust deed conveying the lots and premises described in plaintiff's petition, including, also, other lands.That the said trustee subsequently refused to execute his trust, and H. J. Labatt was duly appointed as substitute trustee by the cestuis que trustent, and H. J. Labatt sold said lots and premises described by plaintiff, under said trust deed, on January 5, 1892, before the court-house door of Polk county, to Leopold Weis, together with other premises, for the sum of $1,885.Said Leopold Weis complied with his bid, and a deed of conveyance was executed by the said trustee on January 6, 1892, to Leopold Weis, and delivered to him, conveying the premises purchased.That said sale was made at the court-house door of Polk county because D. S. Chandler, before the time of the sale, requested H. J. Labatt, the trustee, to sell said property at Livingston, Texas, and not at Galveston, Texas; and the sale would have been made at Galveston, Texas, but for plaintiff's said request.Wherefore defendants say that plaintiff is estopped to deny the validity of said sale made at Livingston.That on March ____, 1892, the said Leopold Weis conveyed, by deed, said lots and premises described in plaintiff's petition, for $750, to J. W. Hammond.That said J. W. Hammond on the ____ day of February, 1894, for and in consideration of $800 paid, sold, and by deed conveyed, said lots and premises described in plaintiff's petition, to W. D. Willis.That this purchase was made for and at the request of defendants, and by an agreement between them and W. D. Willis.That on the ____ day of July, 1894, the said W. D. Willis conveyed, by deed, to these defendants, said lots and premises described in plaintiff's petition, for the sum of $800, of which these defendants paid cash $100, and executed and delivered to said W. D. Willis their twelve promissory notes, payable to him or order, of even date with the deed, for $58.33 1/3 each, payable in four, eight, twelve, sixteen, twenty, twenty-four, twenty-eight, thirty-two, thirty-six, forty, forty-four, and forty-eight months.That said notes have been paid as they matured.

"Defendants further allege: That when said lots and premises described by plaintiff in his pleadings were sold by H. J. Labatt, trustee, before the court-house door of Polk county, and purchased by Leopold Weis, his bid for the property purchased was paid by crediting the totals (about $1,885) on the said indebtedness of plaintiff to Weis Bros. and the other pool creditors.That the lots and premises described in plaintiff's petition were bid in by Leopold Weis for $600, which was the reasonable value of said lots and premises.That said Leopold Weis was then the owner of the claim due by plaintiff to the firm of Weis Bros.That said Weis Bros. were the agents of the combined pool creditors of plaintiff, for whose benefit plaintiff executed his trust deed to W. H. Howard.That all of plaintiff's said pool indebtedness was payable at the office of Weis Bros.That Weis Bros. managed the entire collections of the pool indebtedness of plaintiff under the trust deed aforesaid.That, at said sale in Livingston, plaintiff, D. S. Chandler, was present, and assisted H. J. Labatt, the trustee, in selling said lots and premises described in plaintiff's petition, and then and there expressed himself satisfied with the sale of said property, and urged parties present at the sale to bid on the property then sold.That Leopold Weis bid in said property, lots 1, 2, 7, and 8, block 21, in Livingston, less...