McLean v. Moore
145 S.W. 1074
Tex. App.
1912
Check Treatment
JENKINS, J.

[1] (after stating the facts as above). 1. The first assignment of error raises the issue as to whether or not the allegation that appellees T. J. and W. J. Moore assumed all of the liabilities of the Iron City National Bank showed a good cause of action when taken in connection with the other allegations in said petition. The contention of appellees is that, inasmuch as the warranty of said bank was not broken at the time the appellees assumed its liabilities, the amount due on said warranty had not then become a liability of said bank, and did not become such liability until the warranty was broken. With this contention we cannot agree. Benge v. Bowling (Ky.) 51 S. W. 151; Hyatt v. Anderson (Ky.) 74 S. W. 1094; Cochran v. U. S., 157 U. S. 286, 15 Sup. Ct. 628, 39 L. Ed. 704; State v. Sheets, 26 Utah, 105, 72 Pac. 334; White v. Green, 105 Iowa, 176, 74 N. W. 628; Reynolds v. Waterville, 92 Me. 292, 42 Atl. 553; Cyc. vol. 25, p. 223; Words & Phrases, vol. 5, p. 4112. In Benge v. Bowling, supra, the Supreme Court of Kentucky held that a covenant of warranty in a deed creates a liability as of the date of the deed, and not as of the date of the eviction.- A legal obligation to pay a sum of money ascertained or capable of ascertainment, upon a contingency which may or may not happen, is a liability.

[2] 2. It being alleged that the Moores were the sole stockholders of the Iron City National Bank, and that they had, prior to the institution of this suit, taken over all of the property of said bank, and that said property far exceeded in value all of said bank’s liabilities, such allegations were sufficient to show that the'Moores were responsible upon the bank’s warranty, without reference to their agreement made with said bank to assume all of its liabilities. Mining Co. v. Reinhard, 114 Mo. 219, 21 S. W. 488, 35 Am. St. Rep. 746; Hall v. Henderson, 126 Ala. 449, 28 South. 531, 61 L. R. A. 621, 85 Am. St. Rep. 53; Singer v. Hutchinson, 183 Ill. 606, 56 N. E. 388, 75 Am. St. Rep. 133; Commercial, etc., Bank v. Burch, 141 Ill. 519, 31 N. E. 420, 33 Am. St. Rep. 331; Bartlett v. Drew, 57 N. Y. 587; In re Brockway, etc., Co., 89 Me. 121, 35 Atl. 1012, 56 Am. St. Rep. 401; Buck v. Ross, 68 Conn. 29, 35 Atl. 763, 57 Am. St. Rep. 60; Moffatt v. Smith, 101 Fed. 771, 41 C. C. A. 671; Clark & Marshall, Private Corporations, vol. 3, § 778.

[3] A corporation cannot escape its liabilities by distributing its assets among its stockholders. In such case the stockholders become liable to the extent of the stock received by them.

[4] 3. As the Iron City National Bank was a banking corporation, created under the national banking laws, we think the Moores would be liable on the warranty of said bhnk by virtue of the national bank act. Article 5151, Rev. Stat. (U. S. Comp. St. 1901, p. 3465), provides that: “The shareholders of every national banking association shall be held individually liable, equally and ratably, and not the one for another, for all contracts, debts, and engagements of such asso--eiation, to the extent of the amount of their stock, therein at the par value thereof, in addition to the amount invested in such shares.” It is alleged that the Moores were the sole owners of all the stock of said bank, and, while the amount of such stock is not shown, we know,, as a matter of law, that it must have exceeded $500, the amount claimed by reason of the breach of said warranty. Such warranty was a “contract” and an “engagement” of said bank.

[5] 4. When a vendee is sued for land which has been conveyed to him by warranty deed, he has the right to vouch his grantor into the suit and to maintain against such grantor a cross-action on the warranty contained in the deed. The allegations of appellant’s cross-action were sufficient, if true, to entitle him to a judgment against the appellees. Rev. Civ. Stat. art. 5252; Kirby v. Estill, 75 Tex. 487, 12 S. W. 807; Norton v. Collins, 1 Tex. Civ. App. 275, 20 S. W. 1113; McCreary v. Douglass, 5 Tex. Civ. App. 494, 24 S. W. 367.

[6] The objection that this is a partition suit is not well taken in this case,, if it could .be in any case. The plaintiff had alleged that appellant herein was the owner of a two-thirds undivided interest in the land sued for, and the suit was to recover the other undivided one-third interest. This made it in *1076 fact, as in form, a suit of trespass to try title; and it is immaterial that, in addition to seeking to recover the one-third interest, plaintiffs also asked for a partition of said interest when so recovered as against appellant herein, who was admitted to own the other two-thirds interest.

[7] 5. The exception to appellant’s cross-action that the allegations therein did not furnish sufficient data upon which a judgment could be based should have been overruled. Said cross-bill alleged that appellant paid $500 for the land purchased from the bank, and, inasmuch as it did not appear that he had been ousted from said land, he was-entitled, upon said allegation being proven, to recover the sum of $500, with interest from the date of the judgment.

[8] 6. Appellant assigns as error the judgment of the court “that he take nothing by his said suit against said defendants T. J. Moore and W. J. Moore, and that said defendants go hence without day, and recover of the defendant J. H. McLean their costs in this behalf expended.” Had there been no other error, we would have sustained this objection and reformed the judgment so as to make it a judgment of dismissal in so far as said cross-action is concerned instead of the one rendered, the effect of which, if allowed to stand, would be to prevent said McLean from hereafter instituting suit against appellees on said warranty.

If the exceptions to plaintiff’s cross-action were rightfully sustained by the court, then, in effect, appellant has never sued the Moores on said warranty, and he should not have been barred by judgment herein from doing so in the future, if he has any cause of action against them.

For the errors herein indicated, the judgment of the trial court is reversed, and this case is remanded.

Reversed and remanded.