Spencer v. Pettit

• Citation: 17 S.W.2d 1102
• Decision Date: 08 May 1929
• Docket Number: (No. 3227.)
• Parties: SPENCER et al. v. PETTIT et al.
• Court: Court of Appeals of Texas

Page 1102

17 S.W.2d 1102

SPENCER et al. v. PETTIT et al.

(No. 3227.)

Court of Civil Appeals of Texas. Amarillo.

May 8, 1929.

Rehearing Denied June 5, 1929.

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

Suit by Robert Pettit and others against W. E. Spencer and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

Chas. E. Coombes, of Stamford, and Bean & Klett, of Lubbock, for appellants.

Vickers & Campbell and Lockhart, Garrard & Brown, all of Lubbock, for appellees.

HALL, C. J.

This is the second appeal of this case. For the opinions disposing of the controversy on the former appeal, see (Tex. Civ. App.) 268 S. W. 779, and (Tex. Com. App.) 2 S.W.(2d) 422.

Since the former appeal, the appellees, plaintiffs in the court below, have filed their second amended original petition, complaining only of W. E. Spencer, J. E. Spencer and J. H. Pettit as defendants, alleging: That appellees were, at the time the suit was filed, the minor children of J. H. Pettit and Amanda Elizabeth Pettit. That their mother died April 1, 1910, leaving surviving her her husband, J. H. Pettit, these appellees, and three adult children. That the appellees were minors on the 1st day of January, 1920. That at the time of the death of their mother, the community estate of herself and her surviving husband, J. H. Pettit, consisted of certain personal property of the total value of $32,500, and of three certain sections of land in Lubbock county of the value of $38,400. That the personal property consisted of 650 cattle, 25 work horses and mules, and of certain farming implements, leases, and household furniture. That at the time of their mother's death, the personal property belonging to the community estate was incumbered for the sum of $7,500, said incumbrance being evidenced by a chattel mortgage upon the cattle. That the real estate was incumbered in the sum of approximately $5,000, and that the net value of the estate, real and personal, over and above all debts and incumbrances, was $58,400. That upon the death of their mother, plaintiffs inherited and became the owners of an undivided one-third interest in all of said property. That at and prior to their mother's death, the said property constituted what is known as the Pettit ranch, and was in the possession of and being managed and used by their father, J. H. Pettit, for ranching purposes.

That no administration was ever had upon the estate of their mother, and that no part of the community estate of their deceased mother has ever been set apart or paid to them. That after their mother's death, appellees assisted their father in the operation and management of the ranch, and none of the property was ever partitioned or set apart to any of the children. That the estate so operated prospered and increased in value until the 22d day of September, 1919, at which time the personal property, consisting of live stock, farming implements, etc., was of the reasonable total value of $76,700, which was incumbered at that time to the extent of $31,000, leaving a net value of said personal property of $45,700. That during the time from the death of their mother to September 22, 1919, their father acquired additional real estate, which is specifically described in the amended petition, of the fair market value of $178,200, which was incumbered to the extent of about $112,860, and that on said last-named date, the total net value of real and personal property belonging to their father, his adult children, and these appellees amounted to $158,560.

That on September 22, 1919, the defendants sold and converted all of the above-described personal property to their own use and benefit and have withheld the proceeds from the sales of said personal property from appellees. That appellees have not received anything whatever as their share of said property or its proceeds. That said property was first sold by J. H. Pettit to the Spencers on or about September 22, 1919, and immediately thereafter said Spencers disposed of all of such property and placed the same beyond the reach of plaintiffs, to their damage in the sum of $15,233, that being one-third of the net value of such property. They charge that Pettit and the said Spencers had knowledge of the interest and ownership of appellees in all of said property, as the heirs of their deceased mother, and that they are tenants in common, with the said Pettit and the Spencers, of the property remaining unsold, which consists of about 2,291 acres of land. That said land has increased in value approximately $17.50 per acre. That the Spencers have incumbered said property and have so burdened it for the purpose of rendering it unprofitable to plaintiffs and with the intent of placing it ultimately beyond recovery by plaintiffs. That at the time said lands were acquired by the Spencers, they were of the reasonable value of $30 per acre, less the incumbrances then existing to the extent of about $11 per acre. That the reasonable annual rental value of all of said lands was $2 per acre since the 22d day of September, 1919.

The appellees further allege that the property originally constituting the community estate of J. H. Pettit and his wife, by use and investment, increased and enhanced in value. That the said J. H. Pettit used and managed the community estate after the death of Mrs. Pettit. That he sold the live stock and other personal property during the nine years after the death of their mother, while he operated the ranch, and invested the proceeds of live stock and other personal property, which he sold, in lands and in other live stock. That when the live stock upon the ranch were depleted, J. H. Pettit would purchase other cattle with the proceeds of stock which he had sold and would pledge the property on hand for the payment of the purchase money for other cattle acquired by him. That in such transactions, he usually paid part cash for cattle and for other adjoining real estate, and when live stock so purchased would increase, and would be ready for market, he would sell them and invest the proceeds and profits in other live stock and in the real estate above described. That during said nine years he mixed and mingled all of such property with the original community property; but throughout all such transactions, the integrity of the ranch was maintained and operated as the Pettit ranch, and during said time the said J. H. Pettit recognized the interest of appellees in such property and in all additional property acquired by him, and that said increase in the amount and value of property was for himself and appellees.

The appellees further allege that as part payment for the land conveyed to the Spencers by J. H. Pettit, the latter accepted oil and gas leases and oil stock which were worthless.

The Spencers answered by general demurrer, special exceptions, general denial, and pleaded ratification, waiver, release, limitation, purchase for value in good faith without notice, and res judicata in that the rights of the appellees had been fully adjudicated and settled in a partition suit had between appellees and the Spencers.

The answer of the defendant Pettit admitted substantially the cause of action as alleged by plaintiffs, and prayed for judgment over against the Spencers for any sum that should be adjudged against him by reason of the fraud practiced upon him by the Spencers in inducing him to exchange the property in part for the worthless oil leases and stock.

The adult children of Pettit and wife are not now parties to this suit.

The case was submitted to a jury upon special issues, and, in response, the jury found that some of the cattle, sheep, other live stock and farming implements which J. H. Pettit sold to the Spencers in 1919 were acquired by Pettit through the use and investment of the proceeds of the property of himself and his deceased wife and from the increase of said property, and that the value of one-third of said property, over and above the debt held by the Drovers' National Bank against Pettit, was $4,332.87. That real estate to the extent of 5,940.6 acres was acquired by Pettit by using and investing the proceeds of the community property of himself and wife, and that said real estate was worth $20 per acre in September 22, 1919. That the Spencers had notice of appellees' interest in the real and personal property in controversy at the time they purchased it from J. H. Pettit. That it was the intention of Pettit, at the time he acquired the property in controversy and executed notes and made part payment thereof, to pay such notes out of the common property of himself and children. That the rental value of the lands in controversy was $1 per acre per annum.

The court rendered a judgment in favor of appellees for 1,980.2 acres of land and appointed commissioners to partition the real estate. Judgment was also rendered against the Spencers in favor of appellees for the sum of $6,737.60.

The first contention to be considered is that the court erred in refusing to peremptorily instruct a verdict in favor of appellants, because from the undisputed evidence it affirmatively and conclusively appears that appellees failed to trace and identify any of the proceeds or increase of the property of the first marriage into any of the specific property sold by Pettit to the Spencers.

This contention was made upon the former appeal and was overruled, and we think it should be overruled again. The appellants quote certain statements from the testimony of J. H. Pettit, which they insist show that appellees did not trace their share of the community estate into the property which their father sold to appellants in September, 1919.

We have carefully reviewed the statement of facts, and we think the evidence is sufficient to sustain the finding of the jury upon this issue. It is conceded that all the property owned by J. H. Pettit and his first wife at the time of the wife's death April...