Rosenthal & Desberger v. Mounts

• Decision Date: 12 May 1910
• Parties: ROSENTHAL & DESBERGER v. MOUNTS et al.
• Court: Texas Court of Appeals

130 S.W. 192

ROSENTHAL & DESBERGER v. MOUNTS et al.

Court of Civil Appeals of Texas.

May 12, 1910.

Rehearing Denied June 16, 1910.

Appeal from District Court, Denton County; Clem B. Potter, Judge.

Action by Rosenthal & Desberger against P. Mounts and another. From a judgment in favor of defendant N. F. Peterson, plaintiffs appeal. Reversed and remanded.

S. M. Bradley and H. C. Ferguson, for appellants. R. H. Bates, for appellee Peterson.

HODGES, J.

The appellants instituted this suit against P. Mounts and N. F. Peterson, the appellees, for the recovery of an undivided one-third interest in the tract of land described in their petition, situated in Denton county. They also prayed in the alternative for the value of the land if it should be held that they were not entitled to recover the property itself. In addition to the usual averments in actions for the recovery of land, the petition alleges in substance the following facts: That appellants were residents of the state of Missouri; that in 1899 they held a claim amounting to over $400 against Smith & Hawkins, which they placed in the hands of appellee Mounts, as an attorney, for collection. In due time a judgment was rendered in the county court of Denton county in appellants' favor, on which an execution was issued. Thereafter the land described in the petition was seized and sold by virtue of that execution, as the property of Bennie O. Smith, one of the members of the firm of Smith & Hawkins. Mounts appeared at the sale and bid in the property for $67.75, the amount of the bid being credited on the execution and judgment; that Mounts thereafter entered into a fraudulent agreement with his codefendant, Peterson, had the sheriff make a deed to the latter and put him in possession of the land; that neither Mounts nor Peterson had ever paid any of the money bid for the land at the execution sale. They deny that Mounts was given authority to sell the land, and allege that his and Peterson's dealings were the result of a conspiracy to defraud appellants. They also allege that since the institution of the suit they have acquired another and perfect title to the land in controversy, which they plead and rely upon. Mounts did not answer. Peterson answered by special and general exceptions, a general denial, and plea of not guilty. He also specially pleaded a purchase of the land by virtue of a verbal contract made with parties purporting to represent Lina Short and husband, who are the admitted common source of title. He also claims that the appellants are now estopped to assert a superior title, because of the sale of the land under execution to him through Mounts as their attorney. He further pleads improvements in good faith. In addition to this he sets up a claim for damages in a cross-action not necessary here to notice. Upon a trial before the court without a jury judgment was rendered to the following effect: It recites that the "court has been informed in open court by plaintiffs" that they and the defendant Mounts had adjusted their interest in the suit by agreement at the time the plaintiffs and defendant Peterson announced ready for trial. Judgment is then rendered for Peterson against the appellants for the land and quieting his title thereto. It is further adjudged that the appellants recover from Mounts, in accordance with the agreement referred to, the sum of $110 with interest. It further awards judgment in favor of the appellants against Peterson for $17.

The facts found by the court and proved by the uncontroverted testimony are substantially as follows: It was agreed between the parties that Lina Short was the common source of title. Her title was acquired by the appellants after the institution of the original suit, but before the trial, and is now held by them. Bennie O. Smith, of the firm of Smith & Hawkins, was indebted to the appellants in the sum alleged in the petition, and Mounts was employed as an attorney to make collection of the debt. Mounts thereafter instituted suit in the county court of Denton county, procured a judgment against Smith, and caused a writ of attachment to be issued and levied upon the land in controversy as the property of Smith. The property was afterwards levied upon by virtue of the writ of execution in the hands of the sheriff of Denton county, and sold. At the sale Mounts bought it in for the sum of $69, but did not have the sheriff to execute the deed to him, but to his codefendant, N. F. Peterson. Peterson was not present at the sale, but knew that the sale was to be made. The deed was delivered to him by Mounts more than a month after the sale. Peterson testified: "I was not here at the sale, I didn't know anything about it. I first heard of the sale a short time afterward. A couple or three weeks, or maybe months afterwards, I came down here and Mounts told me about it. He told me the land had been sold. I did not ask him who to. I saw the deed; I saw it after a few minutes, and I read it over. I asked him how much money it would set me back, and he told me double the amount—$127, or something about that. I told him all right I would take the land at that price. Something was said about the difference between that price and the price named in the deed. As soon as he handed me the deed I read it through and saw that the land was sold for $67 or something, and I asked him why he charged me such a price for the land, and he says, `I have had so much trouble to get this land in shape I am bound to have something for my trouble.' Mounts delivered me the deed and I agreed to give him $127. I have paid all of that except $17. He made it in partial payments so I would be able to meet it; I paid him $30 right then, that was all the money I had. * * * When I got the deed Mounts told me that title was just as good a title as could be had, and there would not be any more trouble, or lawsuit about it. That induced me to take the land. I would not have paid a cent of money if I hadn't thought the title would have been all right."

The court finds that Mounts acted for the appellants and for himself when he sold the land to Peterson for the sum of $127, "which," he concludes, "was not the full value of the land, but which I find was a fair price." The court also finds that in May, 1903, the appellants procured the title of Lina Short, and that Bennie O. Smith had no title in the land in controversy at the time the sale was made. He further finds that Peterson procured no title, and had no right to hold the land on account of the verbal transaction referred to in his pleadings. He concludes that Peterson was not a party to any fraud as alleged in the appellants' petition. He then makes the following conclusion of law: "As to the law I conclude that the plaintiff having caused a writ of attachment to be levied upon the land in controversy as the land of Bennie O. Smith, and having sold the same as such, and that the suit was brought in Texas for the purpose of subjecting the land in controversy to the payment of their debt against Bennie O. Smith, and having through their attorney, by whose act I find in this respect they are bound, received pay for the sale of such land, cannot, by the purchase from Amanda Smith of a better title, recover said land from the defendant. That an execution creditor selling land to satisfy a lien which he has upon the land by...