West Lumber Co. v. Henderson

• Decision Date: 25 February 1922
• Docket Number: (No. 765.)
• Citation: 238 S.W. 710
• Parties: WEST LUMBER CO. v. HENDERSON et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

238 S.W. 710

WEST LUMBER CO. v. HENDERSON et al.^*

(No. 765.)

Court of Civil Appeals of Texas. Beaumont.

February 25, 1922.

Rehearing Denied March 8, 1922.

Appeal from District Court, Polk County; J. L. Manry, Judge.

Action by F. B. Henderson, as guardian of Tom Moore, alleged to be non compos mentis, against the West Lumber Company, in which the alleged incompetent intervened as plaintiff after he was adjudged to have recovered his sanity. Judgment for the plaintiffs, and defendant appeals. Affirmed.

Feagin, German & Feagin, of Livingston, and Baker, Botts, Parker & Garwood, or Houston, for appellant.

W. D. Gordon, Thos. J. Baten, and O. S. Parker, all of Beaumont, for appellees.

O'QUINN, J.

F. B. Henderson, as guardian of Tom Moore, who was alleged to be non compos mentis, filed this suit in the district court of Polk county, Tex., May 14, 1915, against the West Lumber Company in trespass to try title for 117 acres of land known as block 36 of the J. S. Garner league in Polk county, and being a subdivision of the estate of A. P. Garner, deceased, and for damages on account of timber cut by defendant on said land. Pending this suit, Moore was adjudged to have recovered his sanity, and on July 4, 1918, he intervened as plaintiff, and on trial judgment was awarded him for the land and for damages for the value of the timber cut therefrom, with 6 per cent. interest from the date of the filing of the suit for its cutting in 1915.

The defendant answered by general demurrer, general denial, plea of not guilty, and specially pleaded that plaintiff claimed the land by virtue of an executory contract of sale dated July 20, 1877, between the heirs of A. P. Garner and plaintiff, Tom Moore, in which the superior title to the land was retained in the Garner estate to secure the purchase money; that the purchase money for said land had never been paid by said Moore or any one for him, and hence plaintiff had no title to said land; that after said executory contract, Moore having failed to pay the purchase money, the estate of said A. P. Garner and the heirs entitled to same rescinded said executory contract, conveyed said land to A. B. Garner and Inez Garner, two of said heirs, and by legal conveyances said land had passed to defendant, and that by reason of said rescission and conveyances thereunder defendant was the owner of the land.

To defendant's answer, plaintiff replied by supplemental petition, and denied the matters therein contained, averred that plaintiff had fully paid the note given for the purchase money for said property, and, in the alternative, that if mistaken as to the payment of said note or any part of same then plaintiff offered to do and perform all such acts and things as in law or equity he should do, and to pay into court such sum as the court might find due.

The case was tried before the court without a jury. Plaintiff recovered judgment for the land and for 1,342,213 feet of timber, at $3.50 per thousand, with interest at the rate of 6 per cent. on said amount from May 15, 1915, to date of trial, totaling the sum of $6,406.95, with interest thereon from date of judgment, and costs of suit; from which defendant has appealed.

Both parties claimed title to the land involved through the common source of the estate of A. P. Garner, deceased. No question is raised as to the amount of the judgment, except the contention that the pleadings of plaintiff do not support the award of interest on the judgment for timber cut.

The record discloses that A. P. Garner died prior to 1877, and that during the year 1877, and afterwards, administration of his estate was pending in the probate court of Polk county, Tex., and that W. H. Garner and F. T. Garner were the administrators; that in accordance with an order of sale granted by the court, said administrators on July 3, 1877, sold numerous portions of the land belonging to the estate of said A. P. Garner, and among them was block 36 of the J. S. Garner league, containing 117 acres, to Tom Moore, and at the same time one house and lot in the town of Livingston and 49¼ blocks of land in the old town of Swartwout were sold to said Moore, the whole for the consideration of $260.70, which sale was duly reported to the court, and by the court approved, and deed to said property duly made to said Tom Moore by said administrators July 20, 1877; that in accordance with the terms of sale, Moore duly executed his note payable to said administrators for said sum, to wit, $260.70, with H. E. Moore and John F. Carr signing same as sureties, and also executed and delivered to said administrators a mortgage on all of said property to secure the payment of said note.

The main, and we think the decisive, question in the case, is: Did Tom Moore pay for the land, and, if not, was there a rescission of the conveyance to him? The court found as a fact that the note had been fully paid off and discharged. We think said finding is supported by the record. There is no question as to the legality and regularity of the sale and conveyance to Moore. The note in question was produced on the trial, and it had no credits noted upon it. It was found among the papers left in an old safe by Judge Crosson, who was attorney for the administrators, after he had left Livingston, Polk county, some time in the year 1891. How it came to be there, or how long it had been there, or for what purpose it was placed there, is not shown by the record; but it appearing that Judge Crosson was the attorney for the administrators, preparing their papers for them and counseling them in the discharge of their duties, we think it is to be presumed that he had the probate papers in his office for the purpose of preparing such papers as were necessary for the administrators to make and have, and that it was left in the safe, perhaps entirely forgotten. Appellant contends that as it bore no credits nor in any manner evidenced any payment on it, it shows want of payment. We think the record abundantly disproves this contention. The administrators reported that the land was sold to Tom Moore on July 3, 1877, which said sale was by the court confirmed and deed duly executed to Moore on July 20, 1877, and placed of record. Several times thereafter the administrators, reporting on the condition of the estate, reported the land as sold to Moore, and never reported any failure of Moore to meet his obligation as to same; but, on the contrary, on March 29, 1881, in a sworn report they reported the sum of $122.62 paid by Moore on his note as of date December 15, 1879. This was admittedly paid, but it nowhere showed as credited on the note, and as the note was well secured, both by personal sureties and by mortgage on the whole of the property sold to him, and as there was never any report showing lack of collection, and no resort to a foreclosure of the mortgage, it may be safely presumed that the balance was paid, and that the note not being in the hands of the administrators, but stowed away in counsel's safe, accounts for the lack of credits appearing on the note. Weems v. Masterson, 80 Tex. 56, 15 S. W. 590; Hume v. Le Compte (Tex. Civ. App.) 142 S. W. 935. There is no contention but that the note was entirely and easily collectable, and also that the estate was in debt, as shown by numorous and repeated applications made by the administrators for orders of sale to pay debts, long after this sale to Moore, and after the receipt of the $122.62, and as the administrators are presumed to, and doubtless did, act entirely for the best interest of the estate in their charge, if the note had not been paid, they would have proceeded to collect same.

Appellant further insists that the note was not paid, because Moore, in his talk with Freeman, said that he had no recollection of having bought the land and that he did not pay for it. In considering the weight to be given to the statements of Moore made to Freeman, it should be remembered that Moore, some time after he purchased the property, was adjudged insane; that he was confined in an insane asylum for about 25 years; that at the time of the conversation with Freeman he (Moore) was some 65 years old, more than one-third of which time had been spent in the asylum; that it had been slightly more than 41 years since he bought the land, the last half of which he spent in the asylum; that his recollection was faulty as to the other items bought at the same time, he thinking and saying that he bought the land and house in Livingston for H. E. Moore, his mother, and that the deed was made directly to her, which the record shows to have been made to him; that he bought the Swartwout lots for F. T. Garner, and the record shows the very next day after receiving a deed to them, he deeded them to A. M. Garner. In fact, he did not seem to have a very accurate recollection of any part of the proceedings, and we do not think the hazy recollection of a man who has just emerged from a quarter of a century's confinement in the insane asylum should or could seriously be contended as of better verity than the solemn records of a court of competent jurisdiction and of public records made contemporaneously with the transaction.

The further presumption could also be indulged, if necessary, as supported by the facts, that as the proof shows Moore did buy the lot and house in Livingston for his mother, H. E. Moore, that he also bought the 117 acres of land for her, but that title never passed to her for want of deed from him. The record shows H. E. Moore rendered the land for taxes the next two years after its purchase, and the record does not disclose that after the sale to Moore any other person ever rendered this identical land for taxes.

But appellant insists that Moore did not pay for the land, and that the Garner estate and the heirs entitled to same rescinded the executory contract made with Moore, and partitioned the land among the heirs. A. B. Garner and Inez Garner...