Ward v. Scarborough

• Decision Date: 11 January 1922
• Docket Number: (No. 273-3503.)
• Citation: 236 S.W. 434
• Parties: WARD v. SCARBOROUGH et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Supreme Court

Page 434

236 S.W. 434

WARD v. SCARBOROUGH et al.^*

(No. 273-3503.)

Commission of Appeals of Texas, Section A.

January 11, 1922.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Suit by Mrs. Willie Scarborough and others against E. J. Ward and others. A judgment for plaintiffs for insufficient relief was reformed and affirmed by the Court of Civil Appeals (220 S. W. 274), and defendant E. J. Ward brings error. Affirmed.

See, also (Civ. App.) 219 S. W. 505; (Civ. App.) 223 S. W. 1107; 236 S. W. 441.

Conner & McRae, of Eastland, for plaintiff in error.

J. R. Stubblefield, of Eastland, and F. G. Morris and Geo. E. Wallace, both of El Paso, for defendants in error.

GALLAGHER, J.

Defendants in error, Mrs. Willie Scarborough, and her sons, Jesse, Chunk, and Moliere Scarborough, brought suit in the district court of Eastland county, Tex., against plaintiff in error, E. J. Ward, and against his father, John Ward, and his brother, Gus Ward, for the recovery of 2,840 acres of land situated in said county which they alleged they had conveyed to E. J. Ward under circumstances claimed by them to create a constructive trust therein in their favor, or, in the alternative, for the recovery of damages in the sum of $104,260.

The Wards excepted to the petition both generally and specially, and such exceptions were overruled. There was a trial before a jury, and at the close of the evidence the Scarboroughs dismissed their suit against John Ward and Gus Ward and elected to rely upon their claim that the land sued for was impressed with a constructive trust in their favor in the hands of E. J. Ward.

The case was submitted on special issues, and a verdict was returned in response thereto favorable in the main to the Scarboroughs, and a judgment was entered in accordance with such verdict. They were, however, dissatisfied with one feature of the judgment, and promptly excepted thereto when the judgment was rendered, and carried the case by appeal to the Court of Civil Appeals for the Second District at Fort Worth. The Supreme Court, under its statutory authority to equalize the dockets of the Courts of Civil Appeals, transferred the appeal to the Court of Civil Appeals for the Eighth District at El Paso.

E. J. Ward filed a brief in said cause presenting cross-assignments of error based on the action of the trial court in overruling his general and special exceptions. Upon hearing the Court of Civil Appeals overruled all of Ward's cross-assignments of error, reformed the judgment as prayed for by the Scarboroughs, and as so reformed affirmed it. (Civ. App.) 220 S. W. 274.

E. J. Ward applied for a writ of error, which was granted by the Supreme Court.

Plaintiff in error, in his application for the writ, complains of the action of the Court of Civil Appeals in overruling his first cross-assignment of error, which was based on the action of the trial court in overruling his general exception to the petition of defendants in error.

Defendants in error alleged in their petition that they were theretofore the owners of the land sued for, the same having been bought with funds belonging to the community estate of Mrs. Scarborough and her deceased husband, the father of the other defendants in error, but that she was authorized by the will of deceased to hold the same in her own name and to manage and dispose of the same during her lifetime. They further alleged that said land was incumbered by two deeds of trust to secure an indebtedness amounting to $9,000 which Mrs. Scarborough owed to one Mosely. They alleged that the said John Ward was trustee in both said deeds of trust and the agent of said Mosely in respect to said indebtedness. They alleged that the notes evidencing said indebtedness provided that the interest thereon should be paid annually, and that in default of the payment of interest the entire indebtedness might be declared due at the option of the holder, and that default in the payment of such interest had been made. They further alleged that, anticipating that said John Ward, as agent for Mosely, would declare said indebtedness due on account of such default, Mrs. Scarborough began to arrange for a new loan to take up such entire indebtedness, and so advised said Ward, and that he thereupon, finding it to the interest of Mosely to keep said loan rather than to collect and relend the money, in consideration of such fact, proposed to waive and did waive the right to declare all said indebtedness due, and agreed to extend and did extend the time of payment of said installment of interest for one year rather than to enforce the collection of said loan at that time, and that Mrs. Scarborough thereupon abandoned her efforts to arrange to take up said loan at that time.

They further alleged that afterwards Mrs. Scarborough entered into a contract to sell said land to one Vines for $6 per acre, reserving all mineral rights, and that said Gus Ward, acting as agent for her, agreed to put up and did put up in bank at Cisco a cashier's check for $1,500 in favor of said Vines as a forfeit to secure her compliance with her said contract of sale, and that a forfeit of $7,500 was put up to secure performance by Vines of his said contract of purchase.

They further alleged that plaintiff in error, E. J. Ward, conspired with the other two Wards to secure the land for himself at a much lower and grossly inadequate price, and that Gus Ward, notwithstanding his engagement to assist Mrs. Scarborough in consummating said sale, in pursuance of such conspiracy notified Vines or his agent that the forfeit put up for her had been withdrawn and represented that said land was in fact worth less than $3 per acre, and that such representation was known by said Ward to be false at the time he made the same, and that all the same was for the fraudulent purpose of making Vines believe that she had abandoned said contract and for the purpose of inducing him to abandon it, and that the same did induce him to do so.

They further alleged that said Jesse Scarborough went to Greenville, Tex., to close the sale of said property to Vines, but was unable to do so on account of the interference of said Gus Ward as herein recited, and that in pursuance of such conspiracy, and to effect its purpose by oppressing and intimidating them and compelling them under duress to sell said land to E. J. Ward at an inadequate price, said John Ward and E. J. Ward met said Scarborough at the train as he was returning from Greenville after having failed to consummate said sale on account of the interference of said Gus Ward as aforesaid, and said John Ward demanded of him, and through him of the other defendants in error, the immediate payment of said entire indebtedness, and declared that, if the same was not paid the next day, he would advertise the land for sale to pay the same; that E. J. Ward then and there offered to buy said land at $4.50 per acre, allowing defendants in error to reserve only a half interest in any royalty that might be paid on an existing oil lease on said premises which lease expired in December, 1919, instead of allowing them to reserve all the mineral rights in said land, as they were entitled to do under the contract of sale to Vines.

They further alleged that, notwithstanding said principal indebtedness was not due, and notwithstanding said waiver of any right to declare it due, and the extension of the time of payment of said installment of interest as aforesaid, which extension had not expired, said John Ward asserted and claimed a right to declare said entire indebtedness immediately due and payable and to advertise said property for sale and sell the same under said deeds of trust and threatened to do so unless said entire indebtedness was paid at once.

They further alleged that they were ignorant of their right to insist upon and enforce their agreement with said Ward as agent of said Mosely to waive the right to declare the entire indebtedness due and to extend the time for payment of the unpaid installment of interest and believed that said John Ward could and would enforce the payment of said indebtedness by a sale of said property if they did not accept the offer of E. J. Ward to purchase the same then and there made, and, being unable to give bond to enjoin such sale, and not knowing where they could borrow the amount of money necessary to discharge said entire indebtedness which then aggregated over $10,000; while their financial position was discredited by such impending forced sale of such land to pay said debt, they, through such undue influence, fraud, oppression, and financial duress, were compelled to accept, and did accept, the offer of purchase so made by E. J. Ward, and conveyed the land to him on April 25, 1916.

They further alleged that said E. J. Ward, by false representations afterwards induced them to convey to him for an inadequate consideration the one-half interest in any royalty which might be paid under the oil lease then existing on said land, which interest in said royalty they had reserved at the time they conveyed said land.

They also alleged that, if they were mistaken as to the existence of a conspiracy between all the defendants, said E. J. Ward knew of the matters and things theretofore set out, and all the same, and knew that they were thereby unduly influenced, intimidated, and coerced in making the sale to him for a grossly inadequate consideration, and that he knowingly availed himself of the unlawful acts of the other Wards to secure an unconscionable bargain in the purchase of said land.

They further alleged that by reason of the premises said Ward should be decreed to hold said lands in trust for them, subject to their doing equity by submitting to a decree imposing upon them as a condition of recovery the return of all purchase money received by them and all money paid by said Ward in the discharge of incumbrances on said land.

They further alleged that the...