Smith v. Fikes, 14073.

• Decision Date: 11 July 1941
• Docket Number: No. 14073.,14073.
• Citation: 153 S.W.2d 977
• Parties: SMITH et al. v. FIKES.
• Court: Texas Court of Appeals

153 S.W.2d 977

SMITH et al. v. FIKES.

No. 14073.

Court of Civil Appeals of Texas. Fort Worth.

July 11, 1941.

Rehearing Denied September 12, 1941.

Appeal from District Court, Tarrant County; A. J. Power, Judge.

Action for alleged breach of trust by Nealie Smith and husband against Leland Fikes. From the judgment plaintiffs and defendant appeal.

Reversed and remanded.

Frank C. Bolton, of Henderson, and Austin F. Anderson, of Fort Worth, for appellants.

McGown, McGown, Godfrey & Logan, B. E. Godfrey, and John M. Scott, Jr., all of Fort Worth, and Edwin M. Fulton, of Gilmer, for appellee.

McDONALD, Chief Justice.

At one time Mose Turner, a colored man, owned two tracts of land in Gregg County, one containing 70 acres, the other 87 acres. Mose had several children, the exact number of which appears not yet to have been judicially determined. One of them was Mattie Turner Moseley, who appears to have left six children surviving her, among whom were William Moseley, Nealie Moseley Smith, and Young Moseley. The three children mentioned had certain dealings with one Leland Fikes, which have resulted in three suits being filed in the District Court in Tarrant County.

Each of the three executed and delivered to Leland Fikes a conveyance of his entire interest, as an heir of Mattie Moseley, in all the oil, gas and other minerals in the two tracts just mentioned. Contemporaneously therewith, Leland Fikes gave to each of the three a letter setting out an agreement supplementary to the mineral conveyance.

The William Moseley case was decided by this court, as shown by the opinion reported in Moseley v. Fikes, 126 S.W.2d 589, and was then decided by the Supreme Court, as shown by the opinion reported in Fikes v. Moseley, 151 S.W.2d 202. Reference is made to those two opinions for a full statement of the case, and for a full description of the written instruments in question.

The parties to this case appear to agree, and we agree, that the controlling issues in this case are similar to those in the William Moseley case. As far as is possible, we shall attempt not to duplicate the statements contained in the opinions in the Moseley case.

The theories of the plaintiffs in all three of the cases are to the effect that the property in question was conveyed to Leland Fikes in trust for certain purposes, that Fikes breached the trust, that he thereby forfeited his right to compensation for the services he agreed to render, and that plaintiffs are entitled to recover from him the value, as of the time of the trial, of the property which they had conveyed to him, he having put it beyond their reach by conveying it to other persons. Plaintiffs also contended that he had taken the money acquired from the wrongful sale of their properties and had invested it in other properties, and that they were entitled to pursue the trust funds.

Reference is made to the opinions in the Moseley case for the disposition of that case, both in the trial and in the appellate courts.

Although the letter given by Fikes to Nealie Smith, appellant in this case, is slightly different in wording from the letter given to William Moseley, it is, we think, subject to the same construction as is the Moseley letter.

Appellants' own analysis of their first twenty-three propositions is as follows:

"(1) Propositions 1 and 2 to the effect that the defendant is a trustee for the plaintiffs.

"(2) Propositions 3 to 9, inclusive, to the effect that defendant breached his trust.

"(3) Propositions 10 to 16, inclusive, to the effect that, by reason of (1) and (2), supra, the defendant is governed by the law applicable to fiduciaries and forfeited all right to any compensation when he violated the trust.

"(4) Propositions 17 to 23, inclusive, to the effect that, by reason of (1), (2) and (3), supra, the measure of plaintiffs' damage is the value of all the property that they had conveyed to defendant, as of the time of the trial, with...