Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1893-02-26
COURT OF APPEALS.
Full Text Of Decisions Rendered N lbs ro,
Worth District

Worth District
The senate met this roornin, =, IN
O'Clock with Lieutenant Governor Crano
in the chair Nl"he
:, After rgll call and prayer by Cbo,oin
DIigss. the senate proceeded 10 nnsi
No; ioi.-J. X Miller ct a.. app.l,sn,s -,
ulus carlton ct al. nnpeiee An,esi
Fvm the district court " flfays5n cei,nfv
OPINION.
unauding findings OF fact and conclusions
OF law)
This Is an appeal from jud,me,, nom
c cci,,,t. ny the district court Of Ornyson
ton. Rosa Carlton aud Ernast gsrit,,,, ro r,
covered certain realty situated IN tbr ritv
~ 9a,i Denison from The appellants j. X and
dict ~ a. Hi i,i father aud sou. The yer.
terpreted the evidence l,onfiiciing 4, s,' a,,
~ Us aspects as 70 justify, IN not Ia ren,,ir,,
irVm us the following
CONCLUSIONS or FACT
,o On Jan u. 1877 J.. X Miller sold ana
ssouNegeu the lot or block of land in c,pn
uovgrsy 70 Lazarus Carton and bis velfs
,hoihe carlton. tho paronts Of tho appei.
s sg,s herein who We're. minors when thls
gss, vas instituted The yendees l.. NJ
carlton and his wife paid pnrfidn ~
ne consideration OF this properly nj the
uule OF the purchuHp. the reuiain1er beinv
he sum Of B Bareaasg ,,5 money note tor
Jan 1873 aud retuining lie vendnr,s
len. Ihey also. 60 secure the deTorr,d
p rgs-.as' executed deed In trust upon the
| properly 10 onu W. H. Munson rs Trustee.
lheA teog possession Of the property aud
| CCS1IIIleu ~ as q homestead until T. w
~, ull, on, lleu IN lSiH, and after that date
IlS NgoW' MOllio Carlton. with her chill.
! dren' The appclleps herein. continued to ~.
| Snpg u as her homestead untH Ia pee.
| I'm when she iuter-mdrried with one
william shockley. Jau 8. 1881. the appel.
| liant y Ia. Miller. brought suit I'm tho Ills
Ilct court OF Grlys0u county against Alolile
'uflton surviving wife ~ j. w. Carlton.
t s. stalns, curtis. Rosa nd Ernest Curl
| luh, ms children, 10 recover the amount due
| upon inc purchase money note aud to fore
close upon the property In question tho
! vendor 8 hen retained IN the note After
| the Institution Of the suit J. X. Miller
/ agreed with Mrs Carlton that II she would
| ucllcr 70 MN possession OF the premises
| reitrreu TO DE would rent the ssme out
ana Wonld apply the proceeds Of the lonsc
! To the payment Of the note aud that he
| W0ull not prosecute 10 Judgment the suit
alrcaly brought 10y him. though II was to
! remain on the docket; and that when the
! rent would have paid OF the note he would
| redellver the premises a. Mira Carlton
| WIN this understanding she surrendered 90
| MIN possession OF the property. This agree
| the rent he seems 10 have carried ont until
| March. 1889. IN the meanwhile the suit
/ was NlhlllNatu T. NDs IL lNNI. Tor want OF
prosecution. On lice -. 1852 II was rein.
| stated On March .. 1889. j. X Miller
| hled an amended petition making William
| Shockley a party Of defendant Miller ON
May 10, 1883. IN violation OF his agree
] ment took Judgment by default for the uu.
| paid balance ~ the note with nn ordcr
| declaring foreclosure " bis lien upon the
property und decrcClng the sale thereof. I'm
| accordance with this decree an order of
| sale was ON Jan. %. 1888 issued ami the
| property was sold on the FIRST fu.s 'Iy On
| Aug 1855 and the deed executed hy tine
1 sherln To the purchaser. J X, Miller Which
| was by him iled for record on Aug Z. 1898.
| J. X. Miller and his wife conveyed tho
| property To James y. Miller by decd dated
| Jan. y. 1881. Ii was recorded on May -,
| 1881 This conveyance wds without cuusid-
| Grafton, the gruutor testlfymg that ID wus
intended A. deed ot .gif,. The rental
! possession Of the defendants exceeded the
| amount " the purchase money note. Mrs.
| Shockley. formerly hrs. Carlton died in
9. 1889.
CONCLUSIONS OF LAW.
We regard this proceeding as m invoaa-
| tlon OF the equitable powers Of the court
| whereby II Is sought 10 have the property,
| the apparent title 10 which Is ia the dc.
PENDANTS, charged In their hands with a
| trust for the PLAINTIFF eqmtably entitled
| 10 IT, The plaintiffs petition. while II docs
the defendant. J r. Miller. in obtaluing he
! judgment and the sale already referred TO,
/ vet ayers facts from which the conclusion
| Of fraud Inevitably follows The court be
low, therefore correctly. as we think, over.
\ rulod the contention OF appellants urged
| there and prrsisteIltly r,-H,serted hv'a that
| this proceeding Is collateral attack upon
| the Judgment OF a court OF general JurisdiC-
! ton 10 be- deemed conclusive against tho
| claim by plaintiffs 10 property involved.
| The Judgment Of the district court " Cray.
| son county, which declared the lien and
| ordered the sale OF the property remains
| undlsurbed. ON account. however, OF the
/ fact that IN securing the sale Of the property
| and the consequent iuyestituc OF title IN
| himself the defendant. ]. X. Miller. ayniled
| himself OF an agreement lwh 'ther intention
/ ally fraudulent u is not necessary tO CON
| sidtp by which he hleG into passNcncss
1 uppellecs and tholr mother, he shulll he dee
| creed 10 hold the title thus obtained subject
| aud I'm trust for their recognized rights.
! by means Of this Judgment obtained under
| such circumstances, and OF the sale Result
| ing therefrom. equity cannot be thwurted
| IN the discharge OF "a task peculiar 10 ~ Of
| ayertinr the consequences Of fraud, actual
| or constructive. The doctrine here applied
| rs not believed by rs to conflict with that
| which holds the Judgment OF u court ui
| general jurisdiction unussailable cOllat or
| ally. The judgments " probate courts
| (which In matters pertaining 10 their Juris'
| diction, are courts OF equal dignity with our
| district courts acting with reference IA
| subjects within their cogniganceD have been
several times thus Interpreted Martin vs.
| Robinson. 90 Texas, $50; Fisher vs. Wood,
| - Texas, 20ti Storrer w. Lane y W. Rep
| vol. ~, ID. ~. une inc uecfeta lhtll
| selves have been declared unimnaired the
| titles Hereunder acquired resting upon
| fraudulent devices untctating tho DEGREES,
have beon charged with u trust Tor the
benefit OF the victims OF these devices. As
| Jnmes n. Miller the remaining defendant,
obtained the property without consideration
| from his father he occupies with refvr-
| ence TO the assertion or his rights, the same
| attitude as the latter
| The nppellnnts complain OF the refusal OF
| the trial court TO give special Instruction
requested hy them upon the plea or hmllu-
lions This instruction embraced Two
| changes The first clause was erroneous
because Il did not limit tie period VI adj
| mstItution OF the suit. hut extended IL 20
| the time OF the trial Besides, as requested,
| il could not have benefited appellants az u
| vas not 10 apply n the appellees were
| minors aud their minority was undlhputed.
The second clause was erroneous becanse
| a was made 20 rest upon the alleged ihct
| thnt M some time during the period 81 the
Attendants possession the mother OF lhe
| Dlaintin was a widow. whereas the evidence
showed thar during that period sne WRs
constantly under cOvcrture Inc lesul9n1
except perhaps as TO Mrs carton hhli IVY
ferest presented no aspect, under Whlch
the statute c0nld be invoked 10y the ue
PENDANTS: and 10 that phase the requested
| instruction was not suucltnt even 70 N'
| vic the attention 81 the COURT Inc chhfkt
was properly refused. 49,. a.. ,t.
we 10 NOT concur Will appellants that the
| vordiet ~ the Jury hnding the lgreemthl
on tbe mart OF J X Miller already recited
! in our conclusions az fact Is contrary 20
| ,i,e cvldcuce The evidence WAS 80 cnl.
dieting on this question q 70 ne sllh h,, SnS