Scott v. Crawford

• Decision Date: 26 June 1897
• Citation: 41 S.W. 697
• Court: Texas Court of Appeals
• Parties: SCOTT v. CRAWFORD et al.<SMALL><SUP>1</SUP></SMALL>

41 S.W. 697

SCOTT v. CRAWFORD et al.¹

Court of Civil Appeals of Texas.

June 26, 1897.

Appeal from district court, Tarrant county; Irby Dunklin, Judge.

Action by O. W. Crawford and others against the Clark & Plumb Company, in which a receiver of defendant's property was appointed, and Henry J. Scott intervened and asked the court to deliver to him certain lands which he had purchased at a sale by a trustee under a power contained in a trust deed, or, if such sale was invalid, that the court permit the trustee to again sell said lands. From a judgment denying the intervener the relief asked, he appeals. Reversed.

Bomar & Bomar and Head, Dillard & Muse, for appellant. S. B. Cantey, Wynne, McCart & Stedman, and W. N. Maben, for appellees.

HUNTER, J.

In this case one of the district courts of Tarrant county, at the instance of appellees, who held a large majority of the capital stock of the Clark & Plumb Company, a Texas corporation, with a capital stock of $750,000, had placed all the property of the corporation in the hands of a receiver. Appellees alleged that the corporation was insolvent; that its assets consisted of 50,000 acres of land lying in Clay and Archer counties, Tex., and promissory notes amounting at their face value to $46,000, which were hypothecated and not under its control; that the lands were worth $8 per acre. The averments of the petition were sufficient to give the court jurisdiction to appoint the receiver, and on January 25, 1896, the petition was filed, and William Capps was appointed receiver of all the property belonging to the corporation, and the lands were by proper order of the court placed in his possession on that day. These lands in November, 1890, belonged to Dorr Clark and D. C. Plumb, who were partners and held the same as tenants in common; and on the 26th day of said month they conveyed the same in trust to Albert R. Shattuck, trustee for Albert L. Richardson, to secure said Richardson in the payment of $185,000, as evidenced by four promissory notes executed by said Clark and Plumb, payable to said Richardson, dated as above. These notes were all to mature on January 1, 1896, and bore interest at the rate of 12 per cent. per annum after maturity until paid; and, for the payment of the interest thereon accruing before maturity of the principal notes, 20 interest coupon notes were given, under the same date, to become due on January 1, 1892, 1893, 1894, 1895, and 1896, respectively, conditioned that, if default be made in the payment of any of said interest coupons, then the holder and owner of said notes could declare the principal sum due and payable at once, without notice to the makers, and further providing that in that event, or upon maturity of the principal notes, the trustee, Shattuck, should have power, at the request of the owner or holder of said notes, or any one interested therein, to sell said property at the courthouse door in Clay county, Tex., at public auction, to the highest bidder for cash, 30 days' previous notice of the time, place, and terms of such sale, and the property to be sold, having been first given in some daily or weekly newspaper published in Clay county, Tex., by at least four insertions, and also a notice thereof for 20 days prior to day of sale to be given in the counties of Archer and Clay in the manner provided for judicial sales by the laws of the state of Texas, the date of sale to be the first Tuesday of some month, and to apply the proceeds to the payment of said debt, and to make a deed or deeds to the purchaser or purchasers, and that the recitals therein should be prima facie evidence of the truth of the statements therein made; further providing that should the trustee at any time believe said property, or any part thereof, had become endangered as a security for the indebtedness, he should have the right to take possession of the same and hold it until said indebtedness should be paid, or until said property should be sold as aforesaid. But it was provided that nothing contained in the deed of trust should be construed as requiring the trustee to take or have actual possession of any of said property before being authorized to sell the same as therein provided. Substitution of trustee was provided for, to be made in writing; the substitute to have all the rights, title, and powers therein conferred on Shattuck. It was further provided that, when sale should be made by the trustee, the party in possession at the time should become the tenant at will of the purchaser, and that he should remove from the premises on 10 days' notice, and pay reasonable rents to the purchaser. Afterwards, on December 15, 1891, Dorr Clark and D. C. Plumb conveyed all of said lands to the Clark & Plumb Company, the corporation above referred to. These notes, while payable to Albert L. Richardson, in fact belonged to the British-American Mortgage Company; and after they were all matured, and default had been made in the payment thereof, as well as a large amount of the interest, W. W. Mangum was duly appointed substitute trustee, Shattuck failing or refusing to act. On the first Tuesday in April, 1896, the said Mangum, as trustee, after advertising the same as required by the deed of trust, and in all respects complying therewith, sold said lands as provided for in said deed of trust, when Henry James Scott, the appellant herein, became the purchaser at the price and sum of $112,000, and the said trustee conveyed the same to him by deed duly executed and delivered on that day. On June 15, 1896, the said Scott intervened in this cause; and prayed that the...