Sullivan v. Fant

• Decision Date: 08 April 1908
• Citation: 110 S.W. 507
• Parties: SULLIVAN et al. v. FANT et ux.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

110 S.W. 507

SULLIVAN et al. v. FANT et ux.^*

Court of Civil Appeals of Texas.

April 8, 1908.

Rehearing Denied May 13, 1908.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Bexar County; Arthur W. Seeligson, Judge.

Action by D. R. Fant and wife against D. Sullivan and others. From a judgment for plaintiffs, defendants appeal. Conditionally affirmed.

Newton & Ward, John C. Sullivan, and Nat B. Jones, for appellants. Botsford, Deatherage & Young, Robert L. Ball, and Francis J. Kearful, for appellees.

JAMES, C. J.

This suit is by Lucie A. Fant, joined by her husband, D. R. Fant, against D. Sullivan, D. J. Sullivan, and the firm of D. Sullivan & Co., composed of D. Sullivan and W. C. Sullivan, and against a corporation known as the Santa Rosa Ranch Company. The petition alleged, substantially, that on or about January 6, 1904, D. R. Fant was indebted to D. Sullivan & Co. in the sum of $437,800.52, secured by deed of trust on lands in various counties, aggregating about 301,203 acres, and chattel mortgages on cattle and horses; that on or about January 5, 1904, some of said indebtedness being due, and the rest approaching due, plaintiffs were endeavoring to make a sale with respect to said property, especially of the Santa Rosa Ranch, and for that purpose had appointed their son, D. R. Fant, Jr., and James F. Scott, their attorneys in fact, who had gone to the King and Kenedy Ranch for that purpose, when Dr. Amos Graves, Sr., as the agent of D. Sullivan and D. Sullivan & Co., went to plaintiffs, and stated that D. Sullivan and D. Sullivan & Co. had sent him, for the purpose of stopping the sale of the Santa Rosa Ranch at $2.50, at which price the said D. R. Fant, Jr., and said Scott had been authorized to sell it, and assured plaintiffs that if they would forego the sale of the property, they, D. Sullivan and D. Sullivan & Co., would sell the property covered by their deeds of trust, and buy it in, so that they could handle it, and would then sell same to the best advantage, and would not sell any of the Santa Rosa Ranch at less than $3 per acre, and after paying the indebtedness due D. Sullivan & Co., together with the reasonable expenses of handling the property, and a fee of 10 per cent. to J. C. Sullivan as attorney's fees, they would return all of the excess of said property to Mrs. Lucie A. Fant for her sole use and benefit, specially agreeing and declaring that the same was not to be turned over to D. R. Fant, and would carry the indebtedness until a sufficient quantity of the property could be sold with which to pay off said indebtedness, etc., and urging said Fant and wife to recall their said attorneys in fact and direct them to not make sale, and agreeing that if they would permit D. Sullivan and D. Sullivan & Co. to sell and handle the property as aforesaid, and charge the 10 per cent., etc., they, D. Sullivan and D. Sullivan & Co., would pay plaintiffs monthly the sum of $335 to live on. That plaintiffs accepted said proposition, and recalled their attorneys in fact. That D. Sullivan and D. Sullivan & Co. confirmed and approved said contract, and performed the same in part, and commenced in February, 1904, and continued up to June 8, 1905, to pay said sum of $335 monthly, and, also, further and additional sums, as requested by plaintiffs, all under said agreement, and with the understanding that they would be charged to plaintiffs in the final settlement. That in pursuance of said agreement D. Sullivan and D. Sullivan & Co. proceeded to sell the property under the deeds of trust and chattel mortgages, and bought it in for a nominal sum compared to its value, on the first Tuesdays in April and May, 1904. That in furtherance of said agreement D. R. Fant prevented persons from attending the sales, and, but for the agreement and understanding, there would have been purchasers at the sales, and they would have sold a sufficient amount of the property at private sale to have paid the indebtedness, but refrained and desisted from doing so, relying on said agreement. That after said trustees' sales D. Sullivan and D. Sullivan & Co., through their agent and representative, Dr. Amos Graves, Sr., sought and obtained a ratification and confirmation by plaintiffs of the sales, for the purpose of curing irregularities in such sales as made, and to remove questions that might arise in the minds of purchasers as to the title of D. Sullivan and D. Sullivan & Co., and to put the title in such shape that it would be acceptable to persons purchasing, and representing that, unless this was done, they could not and would not carry out their agreement, and relying thereon plaintiffs executed such deed, which was prepared by John C. Sullivan, son of D. Sullivan, and brother of W. C. Sullivan, who was acting as their attorney. That the said D. Sullivan and D. Sullivan & Co. never repudiated the agreement made through Dr. Graves, but recognized and in fact carried out the same by making said monthly payments, up to about April 1, 1906, at which time they ceased to make the monthly payments, and claimed and asserted that they had no agreement with the Fants, and that Dr. Graves had never been authorized to act for them. Then follow allegations, in substance, that on February 24, 1906, D. Sullivan sold to the Santa Rosa Ranch Company 86,944.63 acres of Santa Rosa Ranch (the ranch containing about 190,000 acres) for $10 and other considerations, the land being then of the value of $5 an acre, that there was no real consideration for this sale, but that it was had as a pretext and in fraud of plaintiffs, but if it should be sustained as a sale, plaintiffs would be entitled to a credit on the indebtedness in said sum of $434,722.65. That in February 1906, the Santa Rosa Ranch Company conveyed to Ed Lassater 60,709.23 acres of said land so deeded to it, at the price of $173,791.07, leaving 26,235.3 acres still in the Santa Rosa Ranch Company; that as said Lassater was an innocent purchaser and said sale cannot be asked to be set aside, said sum should go as a credit on plaintiffs' indebtedness to the Sullivans, but, as to the said surplus of land in the Santa Rosa Ranch Company of 26,235.3 acres, the sale should be annulled, and the title thereto vested in plaintiff Lucie A. Fant, or the Sullivans be required to pay her the value thereof, $5 per acre, to be credited upon the indebtedness of D. R. Fant to them as of date February 24, 1906. That on August 11, 1905, D. Sullivan & Co. sold to the Live Oak Company the ranch known as "Weedy Ranch," of 47,735 acres, for $106,942.40, and on August 22, 1906, D. Sullivan sold to his son D. J. Sullivan, 49,923,29 acres, part of the Santa Rosa Ranch, for a consideration of $148,185.85, and that D. Sullivan and D. Sullivan & Co. sold 20,000 acres in Starr county at $2 an acre, its reasonable value being $40,000, and sold the cattle and horses their reasonable value being $90,000. That D. Sullivan and D. Sullivan & Co. sold to D. S. Combs, or other persons, the lands in Brewster and Pecos counties for $74,872 net. That said amounts from said five sales, aggregating $633,791.95 overpays the indebtedness of D. R. Fant to D. Sullivan & Co. with interest, expenses, and the 10 per cent. attorney's fees. That by deed dated August 22, 1906, D. Sullivan conveyed to his son D. J. Sullivan 33,826 acres of the Santa Rosa Ranch for a recited consideration of $101,478; that the latter had full knowledge of said agreement made through Dr. Graves, and also knew that the indebtedness of Fant to D. Sullivan & Co. had been discharged, and as in this connection plaintiffs ask that the said deed be vacated and the title to the land vested in plaintiff, or, in the alternative, if the deed be maintained, then that D. Sullivan and D. Sullivan & Co. be charged with the recited consideration, the land being reasonably of the value of $5 per acre. That D. Sullivan and D. Sullivan & Co. have leased and have received rents and revenues from the lands, plaintiffs not being able to state to what extent, but the rental value of same is 20 cents per acre per annum, and pray that upon the trial they be allowed credit therefor. That while in possession of the Santa Rosa Ranch they used about 100,000 acres thereof for their own use and benefit, grazing their individual cattle thereon, from and after about May 1, 1904, and are still using the same, the reasonable value of which is 20 cents per acre per annum aggregating $20,000 per annum, and plaintiffs pray that Lucie A. Fant have judgment for the value of such use. That aside from the sale of the 33,826 acres conveyed to D. J. Sullivan by deed of August 22, 1906, and the 26,235.3 acres still in the name of the Santa Rosa Ranch Company (which have been asked to be set aside), the land sold aggregating 219,387.52 acres, including the land in Starr county, 20,000 acres, and the 60 acres sold to Lassater, leaving still in the hands of D. Sullivan and D. Sullivan & Co., as per description and acreage recited in the deed of confirmation, a copy of which is on exhibit, 129,841.48 acres, but the actual acreage, according to the surveys as set forth and specified, being about 81,815.48 acres, of which about 79,307.48 acres constitute the remaining part of the Santa Rosa Ranch in Hidalgo and Cameron counties, reasonably worth $5 an acre, aggregating $396.537.40 (the apparent title to 26,335.3 acres thereof being in the Santa Rosa Ranch Company, and the apparent title to 33,826 acres thereof being in D. J. Sullivan, as hereinbefore set forth); 1,280 acres being in Zapata county, of the reasonable value of $2.50 per acre, aggregating $3,200 and 1,228 acres in Webb county, of the reasonable value of $3 per acre, aggregating $3,684, making the total value of the land still held by D. Sullivan and D. Sullivan & Co., and to which Lucie A. Fant is entitled, the sum of $403,421.40.

Plaintiffs' prayer was for cancellation of the trustees' sales and the deed of confirmation as to...