Ridge v. Wood

• Decision Date: 18 April 1940
• Docket Number: No. 3940.,3940.
• Citation: 140 S.W.2d 536
• Parties: RIDGE et al. v. WOOD et al.
• Court: Texas Court of Appeals

140 S.W.2d 536

RIDGE et al. v. WOOD et al.

No. 3940.

Court of Civil Appeals of Texas. El Paso.

April 18, 1940.

Rehearing Denied May 9, 1940.

Appeal from District Court, Hidalgo County; W. R. Blalock, Judge.

Suit by Lee Ridge and others against D. G. Wood and others to set aside a judgment and for other relief. From a judgment of dismissal, plaintiffs appeal.

Affirmed.

Montgomery & Taylor, of Edinburg, D. B. Chapin, of Mission, and Tuck Chapin, of San Antonio (A. W. Taylor and W. R. Montgomery, both of Edinburg, on the brief), for appellants.

Davenport & Ransome, of Brownsville (Hill, Greer & Franki, of Mission, and Harbert Davenport, of Brownsville, of counsel), for appellees.

WALTHALL, Justice.

This is a suit instituted August 21, 1937, by Lee Ridge, Olla Mae Revard, and McGuire N. Revard, as the trustees of an express trust called Revard Development Company; Olla Mae Revard, as widow and survivor of C. E. Revard, deceased; and the other appellants as children or grandchildren, and heirs of C. E. Revard, deceased, and their respective husbands and wives, against D. G. Wood and the other appellees named, sued as purchasers under D. G. Wood, to set aside a judgment of the District Court of Hidalgo County, Texas, 93rd Judicial District of Texas, rendered June 4, 1926, in a suit styled "D. G. Wood, et als. v. Ola Mae Revard, Executrix of the Estate of C. E. Revard, et als.," and numbered 5517 on the docket of said court, in which D. G. Wood, as plaintiff, recovered as against Olla Mae Revard, executrix of the estate of C. E. Revard, deceased; Olla Mae Revard, individually; McGuire Revard, Clara Robertson, Ernest Robertson, Nora Stotts, Jack Stotts, Elzema Revard, Jim Osage Revard, Margaret Lena Heard, Cyrus Heard, Cora Perry, Sam Perry, Clarence Revard, Ed Clifford Revard, individually and as owners of an interest in Revard Development Company, an express trust; and against said Revard Development Company, an express trust, title to and possession of two adjacent tracts of land out of Porcion No. 84, Ancient Jurisdiction of Camargo, now in Starr County, Texas, properly described by metes and bounds; appellants Lee Ridge, Olla Mae Revard, and McGuire N. Revard, as trustees of said Revard Development Company, seeking also to recover said two tracts of land from appellees herein, holding and claiming under appellee D. G. Wood; and for an accounting of rents and profits, especially including the value of oil produced on one of such tracts.

The trial court having sustained a general demurrer to appellants' original petition filed August 21, 1937, appellants took leave to amend, and, on October 23, 1937, filed their first amended original petition, to which, on September 8, 1938, appellees' general demurrers were likewise sustained by the court; and appellants having declined to further amend, the court entered its final judgment dismissing their said suit; from which judgment of dismissal, appellants have prosecuted this appeal.

The petition is too lengthy to copy here, so we state what we understand to be the pertinent facts alleged. They are substantially as follows:

On February 12, 1920, appellee D. G. Wood, being then lawfully seized and possessed of the two tracts of Starr County land involved in this suit, conveyed same to C. E. Revard, reserving his vendor's lien to secure the payment of forty vendor's lien promissory notes, aggregating $29,500 principal, executed and delivered to him by said C. E. Revard in evidence of deferred payments of equivalent amounts of purchase money; said vendor's lien notes, numbered from one to forty, inclusive, and bearing interest at the rate of seven per cent per annum, being (except note No. 40 for $250 principal) each for the sum of $750 principal, maturing quarterly, four in each year, on the first days of April, July, October and January; each note providing that failure to pay any of said notes, or any installment of interest thereon when due, should, at the option of the holder, mature all said notes; Wood's said deed of conveyance to C. E. Revard being recorded April 13, 1920, in the Deed Records of Starr County.

On May 22, 1920, said C. E. Revard, his wife, appellant Olla Mae Revard, and his son, appellant McGuire N. Revard, filed a declaration of trust in the Deed Records of Starr County, Texas, naming themselves as trustees, which provided for a trust estate called Revard Development Company, divided into 800 shares of the par value of $100 each, represented by certificates to be issued to the beneficiaries of the trust; vesting in the trustees absolute control over all the affairs of the trust; including, expressly, the power to lease and purchase land, and to institute and defend any and all proceedings at law or in equity in respect to the property rights of the trust; and that "No title or estate of any property at any time held by such trustees * * * * is to vest in the shareholders, but that same shall be and remain in said trustees, their successors and assigns, and that the sole interest of the shareholders shall be in the obligation of such trustees to hold and manage the trust estate and account for its income and proceeds at their discretion."

The general purpose of such trust, as alleged by appellants, was, "To own and operate and maintain irrigated farms and the necessary irrigation system therefor, and to purchase and hold, and own all real and personal property incident thereto."

In the event of a vacancy among the trustees, all property of the trust vested in the remaining trustees, who were likewise empowered to fill such vacancies.

On June 8, 1920, by deed recorded November 10, 1920, in the Deed Records of Starr County, said C. E. Revard and Olla Mae Revard conveyed said two tracts of Starr County land, so purchased by them from D. G. Wood, to C. E. Revard, Olla Mae Revard, and McGuire N. Revard, as trustees of said Revard Development Company; part of the consideration for such conveyance being their agreement to pay $28,750 remaining due and unpaid on the purchase money for said land. Aside from this contract of assumption, the consideration was $13,550, paid by the issuance to C. E. Revard and Olla Mae Revard of a like amount of shares of the capital stock of said Revard Development Company; and $6,000 in shares of capital stock of Revard Development Company were issued to Cora Muller (now Cora Perry, of appellants); and 800 shares of capital stock of Revard Development Company were held in trust (presumably by the trustees above named) for the other children and grandchildren of said C. E. Revard.

Said trust was actually managed by said C. E. Revard from its creation in June, 1920, until his death in 1924; during which period, appellants aver, he made improvements on said two tracts of the value of $15,000 and paid to appellee D. G. Wood the alleged sum of $9,750, principal and interest on the purchase money.

Said C. E. Revard died, testate, February 11, 1924; and by the terms of his will, duly probated in Bexar County, Texas, devised his entire estate to appellant Olla Mae Revard, his wife, who was also named and appointed, and qualified as, independent executrix of the estate.

After the death of said C. E. Revard, appellants Olla Mae Revard and McGuire N. Revard paid to appellee D. G. Wood various amounts (alleged, except as to one payment of $1,500, to be to appellants unknown, but averred as being $5,000 in all) as payments of principal and interest on the purchase price of said land.

On December 31, 1925, appellee D. G. Wood brought his suit in the District Court of Hidalgo County, Texas, docketed as No. 5517, and styled "D. G. Wood v. Olla Mae Revard, Executrix, et als.," complaining of appellant Olla Mae Revard, individually, and as executrix of the estate of C. E. Revard, deceased, her nine children (appellants herein, some of them under different names), and Revard Development Company, an express trust (naming Olla Mae Revard, the estate of C. E. Revard, and eight others, appellants here, including McGuire N. Revard, children of said C. E. Revard and Olla Mae Revard, as owners of said express trust) to recover the amount due, principal, interest, and attorney's fees, on promissory vendor's lien notes Nos. 8 to 40, inclusive, of the series of forty vendor's lien promissory notes executed and delivered by C. E. Revard to D. G. Wood to evidence deferred payments of purchase money for said two tracts of Starr County land; and for foreclosure of his vendor's lien.

Citations directed to them having been issued and served in said suit, appellant Olla Mae Revard and her said children employed M. S. Hallam, an attorney at law practicing his profession at San Antonio, Texas, to represent them in said suit; and pursuant to certain representations made to them and their attorney by appellee D. G. Wood, agreed with him that he might amend his petition in said cause No. 5517, including therein a count in trespass to try title to recover the 2,175 acres of land in Starr County, on which he held said vendor's lien; which he did by a first amended original petition filed March 29, 1926. Olla Mae Revard and six of her children waived service of citation on such amended pleading and appeared and answered thereto; two of her children, who were minors, were duly cited, and M. S. Hallam, the attorney representing Olla Mae Revard and her six children who had answered, was appointed guardian ad litem to represent them in said suit. Said M. S. Hallam also filed an answer for said Revard Development Company; but three grandchildren of C. E. Revard and Olla Mae Revard, children of a daughter, then deceased, were not made parties to the suit.

On June 4, 1926, said cause No. 5517 came on for trial; appellants made no defense; the evidence adduced was reduced to writing, and an agreed statement thereof, signed by counsel, was filed among the papers in said cause; and the court rendered judgment that plaintiff (appellee here), D. G. Wood,...