Swan v. Price

• Decision Date: 11 December 1913
• Citation: 162 S.W. 994
• Parties: SWAN et al. v. PRICE.
• Court: Texas Court of Appeals

162 S.W. 994

SWAN et al. v. PRICE.

Court of Civil Appeals of Texas. Galveston.

December 11, 1913.

On Motion for Rehearing, January 8, 1914.

Appeal from District Court, Harris County; Norman G. Kittrell, Judge.

Action by Emma E. Price against Guy G. Swan and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

Charles Murphy and Roy F. Campbell, both of Houston, for appellants. W. H. Schweikert and L. C. Kemp, both of Houston, for appellee.

PLEASANTS, C. J.

This suit was brought by appellee against the appellant Guy G. Swan individually and as executor of the estate of Milton J. Swan, deceased, and against Mrs. Swan, the wife of said Guy G. Swan, Charles E. Swan, Katherine Mary Frazier and her husband, Rex D. Frazier. The petition alleges, in substance, that plaintiff and defendants are the owners in fee simple of a tract of 426 2/3 acres of land in Waller county, which is fully described in the petition, plaintiff being the owner of an undivided one-half of said land, the defendants Guy G. Swan and wife an undivided one-fourth, and the defendants Guy G. Swan, Charles E. Swan, and Katherine Mary Frazier, heirs of Milton J. Swan, the remaining one-fourth, but that the interest of the defendants in said land is subject to a resulting trust in favor of plaintiff. It is then alleged that on various dates between March 1, 1904, and March 1, 1908, the defendant Guy G. Swan and Milton J. Swan, as agents of plaintiff, received for her various sums of money, aggregating the sum of $10,527.22, and that they had failed and refused to account to plaintiff for the amount so received by them, except the sum of $3,250, which was expended by them for plaintiff in the purchase and improvement of her one-half of said land. It is further alleged that said defendant and Milton J. Swan, deceased, received various other sums of money as agent for plaintiff for which they had failed and refused to account, but "plaintiff is unable to state the exact amounts received by said defendants, or when received by them, but alleges the amount to be $2,500." It is then alleged that the money so collected by said parties as agents of plaintiff was expended by them in purchasing the land before described, but that, acting in defraud of plaintiff's rights, they took title to one-half thereof in their own names. The prayer of the petition is as follows: "Wherefore plaintiff prays that, in addition to the one-half interest in said land belonging to plaintiff by deed in her own name, the court declare a resulting trust in plaintiff's favor for the one-half interest standing in the names of Milton J. Swan and Guy G. Swan, and, in the event the court finds that plaintiff is entitled to only one-half of said land, then this plaintiff prays for a partition thereof and that her part be set apart to her in severalty from the interest of said defendants, and plaintiff prays for an order of court compelling Guy G. Swan and Guy G. Swan, executor of the estate of Milton J. Swan, deceased, to file an account showing the amount of plaintiff's money received by them or either of them, when, where, and for what purpose expended, and that in the event a resulting trust be not declared in favor of plaintiff for one-half of said land that she have judgment against defendants Guy G. Swan and Guy G. Swan as executor of the estate of Milton J. Swan, deceased, for the sum of money found to be due plaintiff from defendants Guy G. Swan and Milton J. Swan, and, in case plaintiff is found to be entitled to only a part of said land, that commissioners be appointed, and that the interest of said plaintiff in said land be set apart in severalty from the interest of defendants, and that this plaintiff may have her writ of possession for that portion of the land awarded to her and for all costs of court and for such other and further relief as plaintiff may be entitled either general or special."

Defendants answered by general demurrer and various special exceptions. They also denied generally the allegations of plaintiff's petition and in bar of plaintiff's claim for an accounting pleaded limitation of two and four years. It is then averred that plaintiff and the defendant Guy G. Swan and Milton J. Swan purchased the land described in plaintiff's petition, plaintiff acquiring title to an undivided one-half therein, and Guy G. Swan and the said Milton J. Swan each an undivided one-fourth, and that by the will of said Milton J. Swan, who died in 1911, the defendants Guy G. Swan, Charles E. Swan, and Katherine Mary Frazier became the equal owners of the one-fourth interest of the said Milton J. Swan. It is then averred that the money paid by the said Guy G. Swan and Milton J. Swan for said land was their own money, and no part of it was money received by them for plaintiff or belonging to her, and that defendants have at all times been and are now ready and willing to partition said land and they join in plaintiff's prayer for partition and pray that one-half of said land and improvements be set aside to them. Then follows special denials that the defendant Guy G. Swan or Milton J. Swan, deceased, was ever an agent of the plaintiff or ever received or collected money for her as alleged in the petition, save and except that the said Milton J. Swan did, at the request of plaintiff, discount certain notes belonging to her and applied the proceeds of said notes, $2,704.20, to payment of the purchase money of plaintiff's one-half interest in said land. It is then averred that, after the purchase of said land by plaintiff and said Guy G. and Milton J. Swan, it was agreed by and between said parties that they would improve and cultivate said land as partners, and would share in proportion to their interest in the land the costs and expenses of said improvements and cultivation and the profits, if any, arising therefrom, and that the said Swans had expended in the improvement and cultivation of said land the sum of $7,000 over and above any proceeds derived from crops raised on said land. The defendants Guy G. Swan and wife further alleged that said Guy G. Swan as manager, and his wife as cook, on said farm, rendered personal services for said partnership for four years of the reasonable value of $1,000 per year, for one-half of which amount plaintiff is liable. These last-named defendants further averred that the property involved is their homestead and their interest therein cannot be subjected to a lien for any debt that may be due by them. The answer concludes with the following prayer: "Wherefore defendants pray that on a hearing hereof and on the accounting here presented that they have judgment against the defendants for one-half of the difference in the amount advanced by them and that advanced by the plaintiff, and that for the services of Guy G. Swan and his wife on the farm, plaintiff to pay one-half, for a partition, for an accounting, and for such other and further relief as defendants may be entitled in law, of which they will ever pray." Defendants offered evidence on the trial tending to support their counterclaim.

The cause was tried in the court below without a jury, and judgment rendered in favor of plaintiff decreeing a partition of the land, giving one-half thereof to plaintiff, one-fourth to appellant Guy G. Swan, and the remaining one-fourth to the said Guy G. Swan, Katherine Mary Frazier, and Charles E. Swan in equal proportion, and directing that in making partition of the land plaintiff's one-half thereof shall include the house and barn which the court finds was paid for by money furnished by plaintiff, and, in event it be found that an equitable partition of the land cannot be made so as to place said improvements on the one-half set aside to plaintiff, it is ordered that the land be sold, and out of the proceeds of such sale that plaintiff be first paid the sum of $2,471.98, the value of said improvements, and that the remainder of said proceeds be divided between the parties in proportion to their interest in the land, as before stated. "It is further ordered, adjudged, and decreed by the court that plaintiff, Mrs. Emma E. Price, do have and recover of and from the defendants Guy G. Swan and Guy G. Swan as executor of the estate of Milton J. Swan, deceased, the sum of four thousand two hundred and seven 22/100 dollars ($4,207.22) with interest thereon at the rate of 6 per cent. per annum from May 9, 1908, and it is further ordered, adjudged, and decreed by the court that the money judgment against Guy G. Swan, as executor of the estate of Milton J. Swan, deceased, be and the same is hereby decreed to be a judgment against defendants, Chas. E. Swan and Katherine Frazier and Rex D. Frazier, her husband, to the extent of their interest in or property received from the estate of Milton J. Swan, deceased." It was further ordered that plaintiff have her execution to enforce the money judgment above set out, but, as to the defendants Charles E. Swan and Frazier, such execution should only run against the property received by them from the estate of Milton J. Swan, deceased.

Defendants in due time filed a motion for new trial, one of the grounds of such motion being that since the trial they had discovered evidence which showed that Milton J. Swan had paid plaintiff a portion of the money for which the court had rendered judgment against the defendants. Upon the hearing of this motion, the court found that the facts therein stated as to the newly discovered evidence were true, and that according to such evidence defendants were entitled to a credit of $975. He further found that defendants were entitled to another credit of $1,525, which was not allowed on the trial because not properly pleaded, but which he concluded should be allowed, notwithstanding the...