Wheeler v. Wheeler
| Decision Date | 26 February 1886 |
| Docket Number | Case No. 2214. |
| Citation | 65 Tex. 573 |
| Parties | C. A. WHEELER v. W. H. WHEELER. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from Waller. Tried below before the Hon. Wm. H. Burkhart.
This was a suit by W. A. Wheeler against C. A. Wheeler for recovery of certain property, or, in the alternative, for recovery of a certain debt and foreclosure of a mortgage on the property, as security therefor.
The petition, in substance, alleged that, on April 18, 1884, the defendant being indebted to plaintiff in the sum of $750, and to one Samuel Roberts in the sum of $981, and being, at the same time, engaged in the manufacture of brick, in the town of Hempstead, Waller county, Texas, and in need of money with which to conduct his business, entered into a written contract with plaintiff, whereby it was agreed, by and between themselves, that plaintiff was to pay and satisfy the defendant's indebtedness to Samuel Roberts, and supply the defendant with such sums of money, from time to time, during the succeeding twelve months, as would be needed by him in the work of completing the manufacture of a kiln of brick, then in the course of manufacture, on the Wheeler brick-yard, situated in the town of Hempstead, Waller county, Texas, and was to receive all moneys arising from the brick business in which the defendant was engaged, in Hempstead, and apply the same to the satisfaction and discharge of defendant's indebtedness, of whatever nature, to him; and, if such, the defendant's indebtedness, was fully paid and discharged within the twelve months, ending April 18, 1885, the Wheeler brick-yard, in Hempstead, together with all the property in anywise appertaining thereto, including wagons and mules, should become the property of the defendant, and the plaintiff was to execute to him a conveyance thereof, otherwise the title to all of the property was to vest fully and completely in the plaintiff, to the exclusion of the defendant.The petition further alleged payment by plaintiff of defendant's debt to Samuel Roberts, divers advancements of money by plaintiff to defendant, in and about the latter's business, aggregating about $1,400, receipt by plaintiff of a like amount, during same period, from defendant's business, a balance of about $1,600 due plaintiff from defendant at the expiration of the time limited in the contract for the payment of his entire indebtedness, and frequent demands on the defendant for payment of such balance, and his continual neglect and refusal to pay it, or any part of it, or to surrender to plaintiff the possession of the property. The prayer was for judgment for the property, and that plaintiff be quieted in his title thereto; or, if the court should be of the opinion that the agreement was a mortgage, for the amount of his debt and for foreclosure of his lien.
The petition was filed April 29, 1885, and, contemporaneously therewith, plaintiff sued out a writ of sequestration, and the property was taken into custody by the sheriff. The affidavit set forth, as ground for the sequestration, the following: “Plaintiff fears the defendant will injure, waste, or destroy said property (which is described in the affidavit, and alleged to belong to the plaintiff), or remove the same out of the limits of the county * * * during the pendency of the suit.”
On September 7, 1885, defendant answered: First, by demurrers, general and special; second, by general denial; third, by special pleas, that, under the agreement of April 18, 1884, the plaintiff had assumed entire control and management of the business mentioned therein, and he, the defendant, to facilitate the plaintiff, and to give him commercial standing, had, at the same time, placed in his name, not only the title to the brick-yard property, but also the title to lots numbers four and five, in block number one hundred and fifteen, in the town of Hempstead, and a certain tract of ninety-three acres of land, in Waller county; that he, the defendant, was, at the time, a married man and the head of a...
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