*1 Yol. deceased wife was an equitable one and the purchasers under were not shown to have husband had any character notice of it. In Roberts v. Trout the husband the land conveyed and he and (cid:127) his wife it actually left without it three having occupied years. The purchaser and received the completed occupancy patent. We do not find that this court that case. on passed point decided was that the husband could make such a sale without the assent of wife, which is a different very question before us. The same v. conclusion was reached Mitchell Nix, 1 Posey’s 126, Cases Unreported and while question not in this case we are not to be understood as a dif intimating ferent opinion. In Bishop Lusk, 8 Texas Civ. it was held by the App., Court of Civil and entered Appeals that when a husband wife land of upon than that another and for a less held adverse time possession died, required limitation, title when the wife give and thereafter the husband married and completed again adverse holding owner, term to bar the true required property did belong estate of the husband community and first wife. That court, case was never brought easily to this and is distinguishable from this. It holds that upon a trespasser of another acquires no whatever right given by until title statute limitations after We time. lapse prescribed have endeavored to show set- this can not be said of a justly tler upon public land with the laws Mm the complying giving do so. follows from what we have said that character of the property fixed, had been to the com- controversy as belonging married, estate of munity the first when last marriage, Creamer that such character could not be that marriage. affected last wife into the resided on the homestead merely family came use, was no more than it changed thereby title to which had been Creamer’s separate property. recover, Plaintiffs having judgments no title they below will be will be rendered that reversed nothing, take etc. Reversed rendered. Reversed and rendered.
A. P. McCord v. W. A. Nabours et al. April 1802. Decided
No.
1.—Pleading—Fraud. trustee, of, Allegations property fraud in sale of in that he sold agreement by reconvey purchaser an at- price under fixed had, some one trustee support proof merely and did so. that such held trustee sale, good making and to induce the faith undertaken to find purchaser’s price take the off the hands at paid, necessary compliance agree- had found it to take himself in with such ment; sale by guaranty rendering the trustee’s interest virtue of such 499, 500.) (Pp. it fraudulent in law. A. W. Nabours al. 1908.] in Sale—Good Faith. Interested 2.—Fraud—Trustee benefit of creditors an for the A sale of trust *2 beneficiaries, when of the and voidable at the. election fraudulent in law is the sale knowledge, interested the assignee, their had made himself without that, by price bought if him at the by guaranty purchaser a to giving at his hands fixed, property off assignee buyer a take the would find to the of the took guaranty assignee himself paid, pursuance of which price irrespective is so price; and this purchaser such at the property i.om and making guaranty such purpose assignee of v. good faith and honest 501.) Texas, 456). (Pp. purchase (Reaffirming Nabours —Limitation—Assignee for Creditors—Notice. 3. of against assignee of on account an for the benefit creditors A claim assets, disposition constituting part a of the of a misaproprialion note is barred by report of the complained being assignee, shown of such note of (P. 501.) years filing report. within two Property. —Trustee—Misappropriation of 4. by a trustee damages misappropriation for of The measure of trial; to the value is not limited at of is the value of same the time (P. 501.) appropriation, at the time of with interest. for, by —Assignment Creditors—Misappropriation—Suit for Beneficiaries 5. Some All. recovery prop- sue estate Where certain creditors an erty misappropriated by seeking appointment of another assignee, trust, assignee for the benefit or a receiver for administration beneficiaries, of all the not the amount to limited to 501, 502.) prosecuting of those action. (Pp. claims —Assignee—Final Report—Discharge—Parties. 6. assignee report, complying who has An made his final with article Statutes, time, may assignee ceases to be from that and the court Revised appoint assignee a another trust as assets receiver or to administer to beneficiaries, though such misappropriated and recovered suit former (P. 502.) assignee a party proceedings. be not made to the —Trustee—-Recovery Against—Credits. 7. by by .property assignee Sold an acquired Where creditors assignee himself recovered back from shim at suit of the beneficiaries assignment, against to him therefor as he is entitled the fund realized from the recov- the ered by to paid amount distributed him property, 502, 603.) (Pp. the creditors. —Corporation—Payment of Dividends—Lis Pendens. 8. by corporation being claiming a stockholder therein sued those A stock, plaintiff’s liable to the ownership company became recov- paid to judgment for the stock for dividends thereon their co-defend- ering (P. stockholder, ant, 503.) during litigation. as Compensation. —Assignee—Right 9. who, by guaranty purchaser, for creditors became As a sale of the render same voidable at suit so interested of the ceditors compensation faith, in.good thereby, acting did forfeit his not assignee except as to for his services as those involved in (P. 503.) particular transaction. —Setting Sale—Improvements—Offset. Aside sale, creditors, assignee’s voidable at an election of Where was set them, by purchaser plaintiff’s was- entitled offset aside in- suit for rent claim improvements the increased value thereof from 503.) (P. him. Yol. 101. on Stock—limitation. —Fraud—Dividends corporate a sale to set aside fraud stock and recover In an action stockholder, claim, the defendant as collected thereon latter dividends former, equity governed by cognizable as the the limi- as well 503, 504.) two years. (Pp. tation of four instead of Appeal—Remanding Instructions—Reopening —Practice Case. judgment for defendant is reversed with instructions Where to render trial court for and directions for judgment necessary ascertaining in the facts therefor, reopened permit will not be further case defendants estoppel pleaded, interpose claim of unless theretofore evidence in (P. 504.) pointed on to sustain such claim is out. the record or relied FOB BEHEABING.
ON MOTION
Sale—Adjustment
Equities.
13.—Setting
Aside
lien,
setting
aside a sale of a half interest
in notes secured
On
*3
having
acquired
and his
of the notes
vendee
co-owner
afterwards
lien,
notes,
subject
equities
property,
to another
in such
surrendering the
incumbered
property is
rendered so
adjustment
uncertain that
the
the
recover instead one half the amount of the
plaintiffs
should
notes with
504, 505.)
(Pp.
interest.
the Court
Appeals
Error
District,
Third
from Milam County.
an appeal
history
McCord,
of this case see Habours v.
previous
For
504;
827;
W. Rep.,
75 S.
82 S. W.
Appeals,
Rep.,
.36 Texas Civil
661;
ISTabours,
Texas, 271;
v.
97
McCord
ISTabours v.
153, 193,
Texas, 527;
McCord,
456;
ISTabours v.
100 Texas,
McCord, 97
469.
Rep.,
103 S. W.
McCord,
ISTaboursv.
Freeman,
Crane,
Monta J.
Henderson,
&
Moore and
Streetman
Crane,
in error.
evidence presents an
for plaintiffs
&
Gilbert
case,
in this
under all
circum
whether
The issueas to
such,
as will
conduct
them
prevent
stances,
guilty
have not
action to set
these
in an equitable
relief
obtaining
from
trans-.
809;
155
Gallaher
Rep.,
Fed.
Knapp,
Brissell v.
actions aside.
S., 368;
R.
P.
v. Atlantic &
Cadwell,
R. R. Co.
U.
Pac.
v.
145
277;
Ambrose,
Rep.,
Rep.,
v.
78 Fed.
C.),
Fed.,
Bartlett
20
R.
(C.
Co.
A.,
Monroe,
101 Fed.
397;
v.
Williamson
839; 24
C.
C.
Co.,
Horton &
Bank
Dexter
322, 329;
&
Francisco
v.
London
San
Cadwell,
601;
515;
v.
593,
A.,
Gallaher
61
C.
Rep.,
126 Fed.
C.
42;
Cal.,
Cook
Court,
S.,
373;
145
v. Superior
Cahill
145 U.
N. W.
Cease,
106
Hawley
(Neb.),
Cal., 614;
v. VonLanken
v.
147
v. Chi
Rozell
456;
130;
Eq.,
N. J.
Van
37
Daggers
Dyck,
v.
Rep.,
cago
Md.,
Co.,
Bank, 85
Demuth v.
525;
Ark.,
Lumber
76
Mill &
326; 60 Am.
322.
Rep.,
St.
measure
fraud then the
of actual
guilty
Where a trustee is
the reasonable
might
is
damages
be proper,
fixed
the court
it,
had held
during the time
rental value of the property
con-
actual,
only
but
no
there is
in a case like this where
damages
rent
what
is not
fraud,
measure
proper
structive
received,
but what
actually
should have been
received
v. W.
497
A.
al.
Babooes
McCokd
1908.]
2;
sec.
note
Pomeroy’s Equity Jurisprudence,
3
trustee.
Buskirk, 148
Ill.,
Van
v.
Buskirk
Van
a debt of the
declared is
to the stock
corporation
A dividend
usual action for a
liable to
debt
holders
Purdy’s
2
Beach
Private
payable.
Corpora
it becomes
day
Martin,
57 Ark.
436;
Co. v.
Ry.
sec.
tions,
Court of Civil
Appeals
re
undertaking
as assignees
Henderson
and to
defendants
move
which was vested in
them the title
them
out of
divest
is unwarranted because of
fact
the as
assignment
deed
out
dismissed
suit and was not a
Henderson
signee
and Henderson and
proceedings
being joint
party
title can not be divested
of this estate
out of one of
assignees
the other
not a party.
a suit
McManus v.
them
Rep.,
Texas Ct.
Cash, 20
has directed a sale of
of Civil
the property
The Court
set
grounds
up by the
set aside
to be
not one
word said in
There
below.
the court
sale,
in order
to secure the
guaranteed
the effect
find
and that
purchaser,
he would
thereby
he be
Lawrence
to the estate and that
interested
adversely
sale, therefore,
came
instance
of complaining
avoided
creditors.
18
should
Prac., 804, 805; Grant v. Whittlesey,
42
322;
Enc. Pl.
177;
Raner, 6
App.,
Colo.
Dotterer v. Freeman,
Ga.,
v.
Smith
88
Md.,
Rentch,
367;
26
Watkins v.
479;
Stockett,
Grove v.
Har.
6
445;
Shannon, Md., 312;
Timms v.
19
& J.
Thomas,
(Md.),
Wesley
28; Balue v. Taylor,
Ind.,
136
(Md.),
368;
6
& J.
Har.
Lemmon
294;
Conn.,
Co.,
L.
Ins.
Mut.
Fraser,
Phoenix
Harkness v.
336;
First
Bank v.
Fla.,
Indianapolis
Ind.,
Nat’l
Root,
*4
Reed,
Ind.,
Tel.
v.
96
224;
195;
Union
Co.
Western
v.
Mescall
96;
Lehman,
Kan.,
v.
52
Ind.,
91
Constant
227;
Tully,
Cross v.
Me., 525;
v.
McElderry
Md.,
2
Bean,
Shipley,
25;
81
Tilden v.
Blodgett,
Mich., 533; Park v.
64
Streeter,
Conn., 288;
45
Seeger
134; Meier v.
20
Conn.,
Kelley,
Ore., 86;
v.
11
Butler
Tingley,
617;
v.
Mon.,
Horner,
Iowa,
Hines
86
Miller, 15 B.
594;
v.
Missouri
498 McGrath, 174; 66 Rives, Stewart, McBroom v. 1 Ky., 79; v. Bran Oliver, Stewart, 2 non v. 47. Watson, Homan, Harris, & A. Hefley, McBride IF. K. J. D. W. Doom, Harris, & for defendants in error. On Etheridge Grendenthal, Texas, 74 53. sufficiencyof Schuster v. pleadings: Texas, McCord, That Nabours v. 97 sale was fraudulent: McCord, 827; Rep., 526; McCord, Nabours v. Nabours v. 75 S. W. McCord, 193; Rep., 153; 82 82 S. W. Rep., S. W. Nabours v. Blake, 661; 14 Nabours v. 82 Haswell v. W. Rep., S. 394; Texas, 400; Todd, Texas Keller Ct. v. 71 Rep., McIlhennv 512; Texas, 146; Texas, v. Miller Smalley, Carroll, 63 71 Moodv v. 488; Ruffin, Exr., Rich, v. 487; (Tenn.), 68 N. E. 4 Cold Rep., v. Coffee Conn., 529; White, American Hard Abbott v. Knapp v. 23 Barbour, Co., 578; Obert, 98; Eq., Rubber 10 N. J. 33 v. Obert James, Ala., 525; Rep., 122 Fed. James v. 55 Hartupee, v. Wing Me., Brastow, 363; Woolen 897; Berlin v. Cook v. Boynton 53 Wis., 433; Voltz, v. Ala., 555; Co., Mill 43 75 Michoud Voltz v. Girod, How., White, Ala., 224; Red Jacket 4 72 188: Foxworth v. Gibson, 36 Pac. 127; Eldridge, v. Strong Tribe v. 12 Pac. Rep., Y., 696; 564; v. 8 Crooke, Kay, Johnson Rep., 46 N. Sands v. Palmer, Finelly, 657; & 142; 8 Clark Humph. v. (Tenn.), Carter 256 Mullin v. seq.; 8 C., English S. Reprint), Reports (Full Isaac, 106; Mo., 807; 12 v. 23 Atl. Smith Doyle, (Pa.), Rep. J. Fritts, Culver, 11 N. 134; Culver v. Creveling v. 34 N. J. Eq., 215; Scott, 499; Cook R. Cases App. (1900), Williams L. Eq., v. Cases, 634; Jacob, 607, De- 19 English Ruling v. Collindridge, Cox, v. Co. 471; 60 Fed. Trust Minneapolis oh Trusts Chambrun v. Rep., ed.), sec. 195; (4th 2 Rep., Perry 76 N. W. Menage, 786a; 110; Kan., 2 Fanning, De v. Beckes, v. 23 Voue Dunlap 36 Cas., Orphan Asylum, 366 et In Re Taylor Johns Ch. seq.; Wis., Bergen, 552; 227; v. Staats Ky., 84 Thompson, Price v. Shoemaker, 52; Har Rep., 20 Atl. Eq., 558; N. J. Bassett v. 17 (3d ed.), Juris. Ga., 164; Pomeroy Eq. 9 2 McHenry, rison v. 957, sec. 958. Miles, Rep., 46 W. S. Mixon v. of damages: As to measure Texas, Fiest, Miles, 318; 80 Booth v. 107; Mixon v. Eng. Encyl. 28 Am. & for compensation: claim forfeiture of As to cited; Digest, Am. p. 1038-9 cases ed.), (2d pp. Law void: Greathouse being of October the resolution As to to recover As to McCord’s Rep., Ct. Martin, ed.), (2d Law Encyl. Eng. 14 Am. & Lawrence: paid amount cited; Bank, (Miss.), & M. 8 Smedes cases Stovall 344-45 and pp. 305; *5 Dickover, Ind., Dec., 495; Cooper 85; v. Sievers Am. 588, 589. Civ. Friedman, App., 23 Texas court. of the . the opinion delivered Mr. Williams Justice statement following the opinion of this For the purposes e . will suffic of the facts case and gen Bank made a and the Milam & Crawford Crawford creditors, benefit of their for the their property of assignment eral- appointing, who assignees, McCord P. and A. Henderson T. S. Nabotjrs A. et al. McCord W. 290S.] After to law charge property. and took qualified according a estate, creditors, of a committee of the administration the partial re- a all the with the schedule of acting assignees, property a property of and each item upon maining undisposed placed Negotiations to at which were authorized sell it. assignees the price purchase for the Lawrence and the begun assignees were between one of cred- who was the LaAvrence, the remainder of the property by not wish to the buy itors and Lawrence one of committee. did not he could sell did believe property it for the controversy because he at which he was price committee and by the put upon Ealston, who was McCord, to make through the purchase. that, Lawrence Lawrence, made to attorney proposition it, McCord he would to sell would and desired buy property it at guarantee would purchaser price, that he find a $10,500, and sum. Lawrence pur- Lawrence credited that to him chased and conveyed assignees. the' was property made by T. S. Henderson did not guaranty know of Lawrence institution time nor until after to upon suit. Soon after called'- Ealston the transaction Lawrence to pur- produce guaranteed whereupon purchaser, Lawrence, chased a of it property taking conveyance himself. dis- The sum Lawrence for paid by property tributed alleged the creditors among assigned estate. in the petition creditors of the terms of did know sale Lawrence nor of upon McCord’s to LaAvrence guaranty was made. sale have bought Lawrence would not without the transaction guaranty. years Some after W. occurred A. Nabours and the creditors number of large setting brought estate this action for the purpose had aside the transaction with LaAvrenceand the assignees, removing receiver Henderson and in order appointing the estate be administered under the deed of might assignment distributed. as to T. proceeds and the The suit was S. dismissed petition prayed Henderson. The specific value, instance, in one it was except alleged its in which had been sold an innocent the tract of LaAvrence to they might in that instance it was prayed purchaser, of the land. There is a for such prayer recover the value general might equity. as the be entitled to law and relief parties found a verdict favor of defendants jury At the trial time was entered This third accordingly. and judgment has before this court. the case assign the Court of this case in favor of the in entering judgment erred no justify judg- because there sufficient pleading below ment based the guaranty given Lawrence.. the following allegations: contained the plaintiffs said be that fact represent charge “Plaintiffs now to do aforesaid, so McCord, as enabled defendant co-assignee of his and dereliction inattention negligent co-operation, use ovm. converted Henderson, fraudulently corruptly *6 500 Vol. and benefit all of the aforesaid properties described paragraph wit, heretofore, hereof, 9 in that: On May the said the contrivance assignees, by of defendant made a pre- estate, tended sale of all of the assets of said purporting include, other among things necessary now to be specifically mentioned, hereof, described in 9 to one property paragraph Lawrence, W. with a previous agreement C. and understanding, covert, both tacit and express, implied by between said Lawrence, McCord and the said that the said only Lawrence was retain and assets not described 9 pay paragraph hereof, understood as being agreed aforesaid that after such ostensible, colorable and fraudulent pretended, of all conveyance Lawrence, he, Lawrence, said C. W. properties said to the said said McCord convey properties should described in 9 at the terms prices hereof upon agreed paragraph upon by previously the said and between McCord and the Lawrence.” said set up sufficiently against These cause of action allegations of his fraudulently, on account as having McCord of Craw- Bank, the Milam Crawford and ford & acquired prop- petition. in the The allegations described sufficient erty on being to, evidence not objected demurrer and the judg- general Butler, Pyron sustained.
ment will be The evidence, to, to admit sufficiency objected the court. is not before error much zeal urge with and ability its former decision upon certified court committed held, Texas, 456, wherein it was substantially, question, furnish guaranty gave purchaser fact Lawrence antagonism from placed property estate, to the creditors of which he represented estate transaction voidable of rendered the which instance again, care, matter examined the have creditors. We A more our knowl- change no cause to opinion. thorough see we us of the for and necessity of this case assures facts edge which the courts have the rule established wisdom who,' assignee or honest trustee purposes faith and good without beneficiaries, becomes the purchaser consent of the care, constitutes no an assertion to his defense to confided the title acquired. thus voidability the real beneficiary truth intention of the difficulty ascertaining committed to himself of possesses who thus trustee his care rule think the established manifest we so that matter inquiry plainly necessary all into to exclude courts there ISTo authority. of such doubt the abuse against to guard show, the interest of the hardships decided cases are as the fall hardship may which is of than importance greater public unlawfully faith good acquire property may the few who security is absolute trustees. There to them as committed n his acts in total trustee agent abstinence There is principal. to that become adverse might interest W. A. Labours ad. 1908-1 *7 the in other rule for the beneficiary security no such of trustees. government in error that the Court of Civil assign Appeals The plaintiffs the its that the defendants error recover judgment erred in that in their because the petition they say property specified from the Mill Milam Company recover note Oil the the due it is Bank, that McCord alleged misappropriated use, own was not embraced the first petition to his that than two before the of the years elapsed filing peti more amended in which this note was- first set up. tion disposition that shown in the of the and if the in the report assignees note was it was not embraced misappropriation claim that sum within original petition, the action to recover was barred 1900. Stats.) one from Rev. year July (Art. error contend that Court Civil Appeals The plaintiffs damages an rule for the measure of be improper prescribed is in the trial of this case. the District Court It applied by that on the value of the claimed part it, the time McCord with at interest misappropriated rendered, be is the measure judgment until shall which the that clearly should be assessed. We think this of this court: is damages question Fiest, following decisions Boothe v. settled Texas, Miles, In 141; Mixon v. 92 the case first 80 held, beneficiary this court “that where the sues for cited com- interest, of the sale with proceeds and not for pensation measure of - would recovery be value land at think trial and we such a rule in this proper time of the case.” of the Court of Civil to the District Appeals The instruction Court It is objected that decision. conforms to the instruction given measure of that damages with the in connection Court of Civil the trial court to assess the value of directs at of the trial interest on the sum give time so assessed date when misappropriated from the by McCord. construction of the proper opinion, this were we would hold If erroneous, we are of that opinion to be language it' more nothing than that when the judgment means entered court the time of the value trial shall for the bear law be the effect would just give which would it interest mentioned the of interest. had not question the court with earnestness It is likewise contended much the plain- can recover the amount of their only this case debts and tiffs whole amount be would plaintiff unauthorized, debts are less than the value of as their the prop- case, estate, of an as in the creditors "Where erty. and a of them equal footing portion an sue to recover stand misappropriated by assignees and to which have assets then the rule is that such assignment, plain- the deed enforce own who sue their benefit and named in thus tiffs them are recover may who entitled to join of those the benefit may taken in estate, charge by order that the whole all of among creditors court administered distributed 502 Yol. to their according several rights. In this case the petition expressly seeks to have the court appoint other assignees or a receiver the court administer when property. recovered and make distribution proper conclusion that it. The following authorities sustain the 535; we Pr., have reached: 5 Pl. & Ency. Pomeroy’s Eq. Jurisprudence, 894; Socarras, sec. Iauch de N. J. Eq., 527; Barton v. Wood, Bryant, 194; Ind. (Carter), Egberts v. 3 Page’s 521; Chancery, Barb., Lansing, Petree v. Henderson was sued originally McCord but subsequently dismissed the case. claimed in error hy .the court’s instruction to remove the Henderson assignees, and McCord, can not be executed for the that Henderson reason *8 is not a party the suit. It from record distinctly the appears that Henderson and McCord was their final and it made report recorded the on office the clerk of Milam county County July 1900, in with Revised compliance this article of the Stat-
utes:
“Art. 86.
any
Whenever
assignee
fully
shall have
performed
the duties of his
and
trust
desires to
there-
discharged
he finally
from,
may
he
make a report
assign-
of his
under
proceedings
the
ment,
the
and
his
showing
moneys
assets that
come into
have
hands,
of,
and how the same have
disposed
and
disbursed
the
re-
affidavit,
truth
which shall be
his
and such
by
verified
port shall
be filed
office of
thereupon
and recorded
the
the
recorded,
the
county
and no action shall be
county
clerk
which
assignment
assignee
such
reason
brought against
by
his
done
him under
the
as shown
anything
assignment
brought
unless the
be
report,
same
within twelve months from
aforesaid;
funds
thereof,
moneys
time of the
and
or
any
filing
Court,
be
subject
hand shall
be
the District
deposited
out
paid
upon the
of said
decree
court.”
There
were no funds
their hands to be
with the
deposited
Court,
therefore,
clerk of
Henderson and
District
McCord
be
1900. The
assignees
July,
ceased to
on the 3d
.statute
day
fully
“Whenever
shall have
provides:
any assignee
performed
there-
discharged
the duties
his trust and desires to be finally
etc.,
from,”
done
statute
the dis-
prescribes,
what
having
action,
therefore,
other
there are
followed without
no as-
charge
be
has
authority
removed. The District Court
signees
a
appoint
administration of the
receiver
and continue the
assign-
shall be
distributed
property
proceeds
ment until
sold
to the
of the creditors. The District
will
according
rights
necessary without
any steps
particular
have full
to take
power
instructions
that respect.
$10,500 which
paid
for Lawrence
went
For
sued
property
them
all of
into
assignees
paid
the hands of
suit
is brought
estate. This
of the assigned
debts
and the
which
all
the creditors
the estate
benefit of
under
control of
court for
will
a fund
be had
be
may
therefore,
will be
creditors,
entitled to
all
benefit
ÍTabodes et
W. A.
al.
5Ó3
1908.]
amount, $10,500,
for this
paid
property
full
for the
a credit
distributed to
creditors.
would charge
no
allegations
that
there are
is claimed
It
petition.
after
paid
filing
with dividends
amended
they seem to us to be
allegations,
amply
not so understand
doWe
either before or after
all
the dividends
to embrace
paid
sufficient
the Milam
which made
Oil
of the amendment
filing
relief would
suit. The
for general
Company
party
prayer
to re-
to be entitled
embrace all
the facts showed plaintiffs
should not
cover.
is also claimed
the oil company
held liable for .the-
after
it was made
payment
dividends
suit,
no
but counsel have furnished
authority
party
such a
wrong
only
the reason that
it was not
proposition
give
Mill
to so
The law
Company
for the Oil
out
the dividends.
pay
notice
one who holds
as a
upon receiving
is that
bailee
security
title to
is in
may
dispute
and have their
determined and
interplead
parties
rights
the plain-
do so he will act at his
In this case
he fails to
peril.
Mill
to the suit
in which
Company
party
tiffs
Oil
was in
notice that
litigation
stock
and this was a demand and
besides,
were claimed
petition sought
dividends
plaintiffs,
dividends,
the Mill
over the
Company
paying
to have
enjoined
and served.
it does
was issued
appear
injunction
Oil Mill Company
think that
there can be no doubt
We
after
which it
out
chargeable
the dividends
properly
paid
*9
Allen v. American Natl.
suit.
party
(Van
it was
Bank,
ON MOTION FOR REHEARING. rehearing it is stated In the for that Henderson owned motion n $1,148.75 eight each notes the assigned one-half of and the bank owned the other half estate of the Crawfords of said a vendor’s notes which notes held lien 510 acres of land known Worthington. et al. 1908.] Parks sub- was notes The lien of eight land. as the Preston Steel have been motion, said to which, in the lien a ordinate to prior with the transaction By is not named. but the amount of it large notes in the eight the half interest Lawrence, McCord acquired Henderson estate. McCord belonged which in settlement of land themselves a of the conveyance took lien. Under subject described prior notes before eight adjustment of are of opinion state facts we this is rendered so uncertain that as parties between equities tract McCord for of land Labours and others should recover from in- of the amount notes with eight the one-half the estate in the time thereon at the rate the notes to expressed terest the trial. of no reason to our issues change We see conclusions as to other case. We are not able to see sound reason why in the the' securing bad of McCord good purposes prop- issue be the estate which he should excluded erty represented of liability on the issue of to account for the consideration him should be considered unlawfully acquired measure of him. as- would be as difficult to against of his real motives and on the latter certain the truth purposes as upon issue the former. facts- If we sustain the of able counsel grant appeal authority of their behalf client have no court would rules of law transactions. change govern settled such first, hereof, will modified as opinion paragraph stated in the otherwise -the motion will be overruled. rehearing remanded Judgment case affirmed instructions. Worthington. L. v. Minnie D. Sallie Parks al. April No. 1828. Decided Deed. 1.—Attachment—Unrecorded claiming may unrecorded when title to land under attachment and sale One assert such against grantee a debtor whose deed was title as attached, right, though by proving holding the one the lien creditor’s party pro- unrecorded deed a under such attachment 509.) (P. ceedings. —Deed—Recital Consideration. wife, voluntary claiming a one under against As deed from husband to subsequent payment show the valuable deed from by husband cannot deed, it of a con- of his the recital consideration the mere recitals $2,500 might be taken as evidence worth $50 sideration (P. 509.) mala tides such transaction. —Voluntary Conveyance—Attaching Creditor—Evidence. attachment, and sale at suit of a claiming foreclosure under One conveyance owner, by such owner to voluntary against a creditor of the levied, wife, has the burden the time attachment unrecorded question, claiming as a cred- debt whether showing itor the existence of deed, attacking or as notice of the one vol- acquiring his lien without proceedings in the attach- rights. of his fraud conveyance untary