Smith v. H. L. Kinney's Ex'rs

• Decision Date: 01 January 1870
• Citation: 33 Tex. 283
• Parties: W. R. SMITH v. H. L. KINNEY'S EXECUTORS.
• Court: Texas Supreme Court

33 Tex. 283

W. R. SMITH

v.H. L. KINNEY'S EXECUTORS.

Supreme Court of Texas.

1870.

1. If lands be vested in a trustee for payment of debts, and his power of sale be limited to a specified time, the lands will not become divested of the trust by the failure of the trustee to make sales within the time limited. On the contrary, though the trustee's power to sell be extinguished by the lapse of the time, yet the trust will survive, and a court of equity will enforce it for the benefit of the parties entitled.

2. If a trustee selected by a debtor misapplies trust funds with which he should have discharged the debtor's liabilities, the creditors cannot be prejudiced thereby, unless they are chargeable in some way for the misappropriation by the trustee.

3. A new cause of action is not set up by an amended petition which alleges the loss and substitutes a copy of the note which evidenced the indebtedness sued for in the original petition. The statute of limitations, therefore, can afford no defense against such an amended petition, unless it be also available against the original petition.

APPEAL from Nueces. Tried below before the Hon. J. B. Hurd.

The character and material facts of this case are clearly disclosed in the opinion of the court.

Davis & Murphy, for the appellant.

J. S. McCampbell and Pryor Lea, with Ballinger, Jack & Mott, for the appellees.

WALKER, J.

This action was commenced in the district court of Nueces county on the seventh day of November, 1860.

The plaintiff, Smith, alleges that Henry L. Kinney, on the twenty-second day of December, A. D. 1852, being indebted to the plaintiff in the sum of $2,228.71, made and delivered to him his promissory note of that date for the sum of his indebtedness.

H. L. Kinney, S. W. Fullerton and M. P. Norton are made defendants, and are all duly served with process. The note was made due and payable in six months after date, and bore ten per cent. interest. The plaintiff demands judgment for his debt and costs, and also prays for the enforcement of a lien which he sets up on about one hundred acres of land situated in the vicinity of the town of Corpus Christi.

On the second day of September, 1854, Kinney being about to leave the country for the purpose of going to the state of Nicaragua, executed to M. P. Norton, a power of attorney in due form of law, and which was filed for record in the clerk's office of the county court of Nueces county on the sixteenth day of September, 1854.

This power of attorney was very full, and ample to authorize all his acts under it which are brought to our notice by the transcript of the record.

On the eighth of August, 1855, Norton, as the attorney in fact of Kinney, executed to S. W. Fullerton a deed, which purports absoluteness on its face, for the land now in controversy, together with other lands to a larger amount; and on the same day Fullerton declared an express trust in the same land, and three days afterward left the same for record with the county clerk.

By the terms of Fullerton's declaration, he had received the trust to the following uses, and subject to the following conditions: He was to sell at such time as he might deem expedient, within three years from the date of the deed, and after deducting from the proceeds of such sales as he should make, his necessary costs, expenses, attorney's fees and commissions, in securing titles, etc., he was to pay the plaintiff's debt from H. L. Kinney. Then he was to pay Cornelius Cahill such sums of money as he might be compelled to pay for Kinney, by reason of being his security on an indemnity bond to Wm. Pusling, of Philadelphia, who had become security for Kinney to the United States, on a bond to answer for a breach of the neutrality laws.

Both Kinney and Fullerton appear, from the record, to have died since the commencement of the suit, and nothing material appears to have been done in the case, in the district court, until 1869, when the plaintiff filed his last amended petition, setting forth that the note which evidenced the debt was lost, and exhibited what he claims to be a copy. The loss of the note is shown by a somewhat defective affidavit.

Kinney's administrators, the appellees, defend the suit and plead payment, and also the bar of the statute of limitations. They admit that the debt once existed, and they assumed the burden of proving their answers.

Neither of the parties demanding a jury, all questions of law and fact were submitted to the court for trial and...