Spencer v. Pettit

• Decision Date: 31 December 1924
• Docket Number: (No. 2399.)
• Citation: 268 S.W. 779
• Parties: SPENCER et al. v. PETTIT et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

268 S.W. 779

SPENCER et al. v. PETTIT et al.^*

(No. 2399.)

Court of Civil Appeals of Texas. Amarillo.

December 31, 1924.

Rehearing Denied February 4, 1925.

Appeal from District Court, Lubbock County; Clark M. Mullican, Judge.

Action by Robert Pettit and other minor heirs, and W. C. Pettit and other adult heirs of Amanda Elizabeth Pettit, against W. E. Spencer and others. From a judgment for the minor plaintiffs, defendants appeal, and from a judgment for defendants against them, the adult plaintiffs appeal. Affirmed.

Stinson, Coombes & Brooks, of Abilene, L. H. McCrea, of Cisco, and Robert H. Bean and Bean & Klett, all of Lubbock, for appellants Spencer Bros.

Vickers & Campbell, of Lubbock, for appellants W. E. and A. Z. Pettit and Ollie and W. H. Lunday.

G. E. Lockhart, of Tahoka, and Vickers & Campbell, of Lubbock, for appellees.

JACKSON, J.

This suit was instituted by the Pettit heirs, Robert, Winnie, Alton, John, Herbert, and Andy Z., and W. C. Pettit, Dora Barnes and husband, H. M. Barnes, and Allie Lundy and husband, W. N. Lundy, as plaintiffs, who are brothers and sisters, and the only surviving heirs of their mother, Amanda Elizabeth Pettit, who died April 1, 1910, leaving J. H. Pettit, the father of the plaintiffs, as her surviving husband. The first six named plaintiffs were minors January 1, 1920. The first four named plaintiffs were minors at the time of filing the amended petition, and instituted and maintained their suit by next friend. For convenience we will hereafter call the plaintiffs who were under age the "minor plaintiffs," and those who had reached their majority the "adult plaintiffs."

The suit was against W. E. Spencer, J. E. Spencer, and J. H. Pettit, and 22 other defendants, who are alleged to have separately purchased their respective tracts from W. E. and J. E. Spencer out of the land in controversy, but as plaintiffs dismissed as to the other 22 defendants, it is unnecessary to give their names.

The plaintiffs allege that their mother, at her death, left an estate consisting of land and personal property, and that no administration was ever had on her estate. Some of the estate of their deceased mother is alleged to be her separate property, and some the community property of her and J. H. Pettit, her surviving husband. The trial court treated all the property as community, and, as no objection is made here to his action, we will consider it as community property, and in stating plaintiffs' allegations, will designate it as community property.

Plaintiffs allege that on April 1, 1910, the date of their mother's death, the property belonging to their deceased mother, Amanda Elizabeth Pettit, and her surviving husband, J. H. Pettit, consisted of land described as sections 8, 10, and 12, block P, in Lubbock county, Tex., containing 1,920 acres, of the value of $30,000, besides some leases on adjoining lands, and that said three named sections were incumbered to secure the payment of $5,000 purchase money; that the personal property belonging to the community estate of their mother at her death, and defendant, J. H. Pettit, consisted of horses, cattle, and other property of the reasonable value of $22,500, and that there was on hand enough farm products and miscellaneous property to pay the community debts; that no administration was ever had on their mother's estate, and no partition was ever had of the community property, or the plaintiffs' part set apart to them; that all of said property was used and managed by J. H. Pettit, their father, assisted by themselves, in the operation of the ranch, and that under such operation the ranch grew and prospered and increased in value; the cattle increased and enhanced in value; great portions of them were sold and exchanged for land and other live stock, and the proceeds invested in lands and live stock in the upbuilding of the ranch; so that on the 22d day of September, 1919, said ranch, in addition to the three sections of land hereinbefore named, consisted of additional lands, fully described in plaintiffs' petition, of the reasonable value of $178,200, that the personal property on September 22, 1919, belonging to said community, consisted of live stock, farming implements, crops, and a vendor's lien note, all of the reasonable value of $76,500; that on September 22, 1919, the defendants W. E. Spencer and J. E. Spencer, by a purported purchase, acquired all of said property from the defendant J. H. Pettit by deed and bills of sale.

Plaintiffs allege: That on and prior to January 21, 1923, they owned an undivided half interest in all the land and all the personal property, subject to the payment of the indebtedness against the property. That the indebtedness against the land was approximately $80,000, and the indebtedness against the personal property was $32,500, leaving a net value of the land and personal property of the reasonable value of approximately $200,000, one-half of which belonged to and was the property of the plaintiffs. That since September 22, 1919, the date of the purported sale to W. E. and J. E. Spencer by the defendant J. H. Pettit, all of the personal property had been sold to innocent purchasers for value, and that a great portion of the real estate had been sold to innocent purchasers for value, and vendor's lien notes taken by said W. E. and J. E. Spencer to secure the payment of a large portion of the consideration for the land so sold. That all of said property was converted by the defendants to their own use and benefit, to the damage of plaintiffs. That all of said real estate is the same quality, and of the value of $30 per acre, and is susceptible of partition, and after the amount of the sold land is determined, commissioners of partition should be appointed, and the unsold lands partitioned among the plaintiffs and W. E. and J. E. Spencer, and, if the unsold lands are insufficient to pay their interest, to award to plaintiffs any deficiency out of vendor's lien notes held by the said Spencers against the land that has been sold.

Plaintiffs, by averment, charge the defendants with knowledge of their right and ownership in and to said property at and before the proposed sale to the Spencers by J. H. Pettit. Plaintiffs allege that they are informed and believe that said W. E. and J. E. Spencer promised and obligated themselves to pay the plaintiffs the value of their interest in said properties, and purchased same on such promise, and discounted the consideration agreed to be paid for said property the approximate sum of $50,000 on the pretense that sooner or later the Spencers would have to pay the plaintiffs the value of their interest in said lands and live stock, and that plaintiffs are entitled to recover from said W. E. and J. E. Spencer their interest in said property on their promise to pay therefor, and have a foreclosure of their lien on the unsold lands, and if such unsold lands are not of sufficient value to pay their claim, then the difference should be made up out of vendor's lien notes now owned by the said Spencers for a part of the purchase money on the sold lands.

The adult plaintiffs allege that on September 22, 1919, they signed and acknowledged a warranty deed purporting to convey all of their interest in all of said lands to the defendants W. E. and J. E. Spencer, but allege that they only signed said deed on the condition that they were to be paid for their interest in said property either in cash, or in vendor's lien notes on which they could realize the cash, of all of which the defendants well knew; that they never authorized delivery of said deed unless they were paid such valuable consideration for their interest in all of said lands, and would not have signed said deed, except for the assurance on the part of the defendants, their agents, and representatives, that they would be paid for their interest in said property; that said deed was immediately recorded, and is wholly without consideration, illegal and void as to the adult plaintiffs, and was obtained from them by false and fraudulent representations; that said plaintiffs have never received any consideration for the execution of said deed, and the same should be canceled and held for naught; that in the district court of Lubbock county, Tex., at the December term, a purported suit, which was apparently a partition suit between the minor plaintiffs and the said W. E. and J. E. Spencer was had, but which involved only sections 8, 10, and 12 above mentioned, and in which an undivided one-third interest in said three sections were allotted to the minor plaintiffs, and the other two-thirds interest was allotted to the said Spencers; that plaintiffs had nothing to do with said suit; never authorized it, but that it was manipulated by the said Spencers and their codefendant, J. H. Pettit, for the purpose of estopping the plaintiffs from recovering any interest in the remainder of said lands, and that said partition suit should be ignored as not binding on the plaintiffs, but if said partition suit should be recognized, then it should be limited only to the three sections of land covered by said suit, and the value of plaintiffs' interest recovered in said partition suit should be deducted from their total interest as herein claimed; that W. E. and J. E. Spencer knew of the right, title, and interest of the plaintiffs, and knew that J. H. Pettit only held the apparent legal title in trust for plaintiffs.

Plaintiffs pray for a recovery of their undivided one-half interest in and to all of said real and personal property; that commissioners be appointed to make partition thereof, and in the alternative, for judgment for the conversion thereof, with a lien against the unsold lands and the vendor's lien notes held against the sold land; also for recovery on the promise of W. B. and J. E. Spencer to pay plaintiffs for their interest in said property with lien as above; that the deed purporting to convey the interest...