Wolf v. Wolf

• Decision Date: 03 December 1924
• Docket Number: (No. 6774.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: WOLF v. WOLF et al.
• Court: Texas Court of Appeals

269 S.W. 488

WOLF v. WOLF et al.

(No. 6774.)^*

Court of Civil Appeals of Texas. Austin.

December 3, 1924.

Rehearing Denied January 28, 1925.

On Motion for Conclusions of Fact and Law January 28, 1925.

Second Motion for Rehearing Overruled February 18, 1925.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Travis County; Geo. Calhoun, Judge.

Action by John Wolf, Jr., against John Wolf, Sr., and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Geo. C. Herman, of Batesville, and Cofer & Cofer, of Austin, for appellant.

Wm. Blakeslee, of Austin, for appellees.

BAUGH, J.

On January 2, 1918, John Wolf, Sr., conveyed to John Wolf, Jr., 3,280 acres of land in Zavalla county, Tex., for an agreed consideration of $12,000; $200 cash, note No. 1 for $1,800, due 5 years after date, and notes 2, 3, 4, and 5 for $2,500 each, due 12, 13, 14, and 15 years after date, payable to John Wolf, Sr. Some time in 1921 John Wolf, Sr., made a partition of his property amongst his seven other children, assigning to them, amongst other things, these notes, subject, however, to a lien upon them, held by the Austin National Bank, and retaining for himself the interest on them during his lifetime. In December, 1922, John Wolf, Jr., filed suit against his father, all his brothers and sisters, and the bank, seeking to offset on these notes the amount of a judgment rendered in favor of the American National Bank against his father, C. E. Anderson, and G. W. Malone, on September 8, 1896, for $3,518, which he claimed to have purchased in November, 1896, from said bank, and also asked that all the defendants be enjoined from transferring or disposing of said notes pending final hearing on his suit.

He alleged the insolvency of Anderson and Malone; that he had kept the judgment alive through timely issues of executions thereon; and that the defendants were confederating together to so dispose of all his father's property as to make this judgment uncollectable. He also alleged that on April 10, 1908, he had an accounting with his father in which it was agreed that there was then due a balance of $2,683 on this judgment for which his father then executed to him a note for that amount, bearing 8 per cent. interest, due 12 months thereafter. His suit was first upon the judgment, and, second, upon the note which was 13 years past due. Plaintiff asked that this alleged balance due upon said judgment be established, or, in the alternative, the amount due on said $2,683 note, and allowed as an offset on the notes he had executed to his father. A temporary injunction was granted as prayed for.

The defendant John Wolf, Sr., moved to dissolve the injunction which motion was granted after a hearing thereon, and, upon the trial on the merits, answered by general and special exceptions, general denial and special pleas as follows:

(1) That during 1896, 1897, and 1898, and for several years prior and subsequent thereto, he and plaintiff, who was his oldest son, had been partners in the cattle business. That he reposed great confidence in the judgment and integrity of his son, plaintiff herein, and intrusted in his hands, not only all the partnership affairs, but also most of his individual business transactions as well, keeping no account thereof himself. That after the American National Bank filed its suit against him in 1896, on the note on which he, John Wolf, Sr., was only a surety, and because of the insolvency of both Anderson and Malone, the other signers, the plaintiff herein, acting in a fiduciary capacity and as agent for his father, paid off and satisfied the judgment of said American National Bank by a note on which his father was principal and he was surety, which note was accepted by said American National Bank in full payment of said judgment, but that said judgment, with its collateral security, was transferred to John Wolf, Jr., in trust for his father. And that thereafter the note given to the American National Bank was paid by the plaintiff in installments, the last of which was paid on December 7, 1898, out of funds belonging to his father.

(2) That the transfer of said judgment to plaintiff was without consideration as to him, but was to him in trust for the use and benefit of his father, and, in order that he might hold such judgment against his codefendants G. W. Malone and C. E. Anderson, whose debt he had paid; and that plaintiff is therefore estopped from asserting any claims against his father under such assignment.

(3) That in the sale and conveyance to John Wolf, Jr., by John Wolf, Sr., of the land in Zavalla county, on January 2, 1918, there was a complete compromise, satisfaction, and discharge of all differences, debts, and claims due from one to the other prior thereto.

The defendant then sought affirmative relief as follows: (1) For damages because said suit was alleged to have been brought in bitterness to vex, harass, and embarrass the defendant in his old age, and for endangering his health; (2) to declare satisfied and paid off as against John Wolf, Sr., the judgment, claimed by plaintiff against his father; (3) that whatever liens were created upon, or that may have attached to, defendant's property by virtue of plaintiff's having filed in the office of the county clerk of Travis county, an abstract of said judgment be declared null and void and that plaintiff be restrained from attempting to enforce said judgment against his father in the future.

In so far as applicable to them the other defendants adopted the answer and special pleas of John Wolf, Sr.

The case was tried to a jury, and the following issues submitted to them:

"Question No. 1. Did the defendant John Wolf, Sr., owe to the plaintiff, John Wolf, Jr., any sum or sums of money on account of said judgment in cause No. 12823, American National Bank v. C. Ed. Anderson et al., at the time of the institution of this suit on December 15, 1922? Answer: No.

"Question No. 2. Was the settlement of January 2, 1918, between John Wolf, Jr., and John Wolf, Sr., in which John Wolf, Sr., deeded to John Wolf, Jr., about 3,280 acres of land, and John Wolf, Jr., gave John Wolf, Sr., $200 in cash and notes for $11,800, a full and complete settlement of all claims, judgments, accounts, and debts between John Wolf, Jr., and John Wolf, Sr.? Answer: Yes.

"Question No. 3. Did the American National Bank of Austin, Tex., accept the note of John Wolf, Sr., and John Wolf, Jr., for $4,244.65, dated August 5, 1896, and secured by a deed of trust executed by John Wolf, Sr., on about 194 acres of land in Travis county, Tex., the property of John Wolf, Sr., as full and complete payment and satisfaction of a note of said American National Bank against C. Ed. Anderson, G. W. Malone, and John Wolf, Sr.? Answer: Yes.

"Question No. 4. Was the note offered in evidence in this case, of date April 10, 1908, for the sum of $2,683, given by the defendant John Wolf, Sr., and accepted by the plaintiff, John Wolf, Jr., as an evidence of the balance due on said judgment of the American National Bank v. C. Ed. Anderson et al., or was it given and accepted by the parties as a balance due on general running accounts between the two? Answer: It was given on a balance due on running account between the two parties.

"Question No. 5. Did the defendant John Wolf, Sr., own any land in Travis county, Tex., on August 12, 1922, the date of the filing of the last abstract of judgment in the cause of American National Bank v. C. Ed. Anderson et al.? Answer: Yes."

The court rendered judgment for the defendants in accordance with said findings, nullified the old American National Bank judgment as between John Wolf, Jr., and his father, dissolved permanently the injunction theretofore granted, declared null and void the abstract of judgment filed in Travis county, and restrained John Wolf, Jr., from attempting to enforce said old judgment against any of the defendants. From this judgment this appeal is prosecuted.

Appellant asserts error of the trial court under 41 propositions of law based upon 42 assignments. The first four of these propositions relate to failure of the trial court to sustain plaintiff's general exception to that portion of defendants' plea in reconvention asking for damages. These propositions are without merit, because the matters to which they are directed were abandoned by the defendant, were not submitted to the jury, and had no place in the judgment, and plaintiff was not injured. The error, if any, was harmless.

The fifth and sixth propositions relate to the sufficiency of the defendant's plea for affirmative relief. He alleged that the plaintiff had filed with the county clerk an abstract of judgment against him, and asked that all liens created thereby against his property be declared null and void. His allegations could properly have been fuller on this point, but, under the issues as raised by the pleadings, we think they were sufficient as against a general demurrer. It was not necessary for the defendant to plead as fully in the case as if he had been endeavoring to foreclose a judgment lien. We doubt if defendant's plea in reconvention, standing alone, would be sufficient. But this plea relates to the identical subject-matter upon which plaintiff's suit was brought, and was in addition to a plea in reconvention a defense to plaintiff's suit. In such case his plea for affirmative relief should be considered in connection with the pleadings of the plaintiff, and, if taken together they present the issues, that is sufficient. Jones v. Wagner (Tex. Civ. App.) 141 S. W. 280; Bourke v. Vanderlip, 22 Tex. 222; Traction Co. v. Polytechnic (Tex. Civ. App.) 236 S. W. 73. Plaintiff in his supplemental petition admits the filing of the abstract of judgment in Travis county. This was for the manifest purpose of fixing a lien upon any land owned or thereafter acquired by his father situated in Travis county. If the judgment was void as to John Wolf, Sr., he...