Home/Fifth Circuit/Western Industrial Co. v. Dodge

Western Industrial Co. v. Dodge

101 F. 910, 42 C.C.A. 80, 1900 U.S. App. LEXIS 4485
Court of Appeals for the Fifth Circuit·Decided May 15, 1900·No. No. 899·Published

Opinion

McCOEMICK, Circuit Judge.

The record in this case is voluminous. There are 432 closely-printed octavo pages, which embrace so much of the record as the parties deemed it necessary to print. There are also four briefs, each of which presents in liberal display* the learning of the eminent solicitors who appear for the respective parties. It would be tedious and unprofitable to reproduce in this opinion the manifold pleadings, the propositions and counter propositions of fact and law, and the multiplied minute distinctions which, with microscopic keenness and intensity, have been made to obscure, and to almost hide, the few vital and simple facts and principles on which the case hinges.

On February 12, 1890, the complainants sold to G. P. Meade, Wm. F. Sommerville, and J. Grant Jones the 36 tracts of land first described in the complainants’ bill, and conveyed the same to the purchasers by 36 separate deeds. In part consideration for the purchase of each tract,- the purchasers executed three several promissory notes, maturing at different dates, bearing interest from date, and providing for the payment of 10 per cent, on the principal and interest as attorney’s fees if the notes were'not paid without suit; and both in the deed and in the notes mention was made that a vendor’s lien was retained on the land to secure the payment of the notes given in each case, respectively. Meade, Sommerville, and Jones, though not so named in the deed to them, were in fact trustees for an unincorporated associa tion known and called the “Wichita Colony Company.” The members of this unincorporated' association, before the 15th of February, 1891, became substantially the only stockholders in the defendant the Western Industrial Company. Before that time Sommerville had released his right and interest as one of the trustees to the other two, Meade and Jones, and on February 15, 1891, these two trustees, on the request of the cestui que trust, conveyed to the defendant the Western Industrial Company, which took title as trustee for the same parties, the 36 tracts of land which had been sold to Sommerville, Meade, and Jones by the complainants, and, along with these 36 tracts of land, very numerous other tracts of land, amounting in the aggregate to more than 150,000 acres. It appears that Meade and Jones executed two deeds to the defendant the Western Industrial Company, bearing the same date, February 15, 1891, and purporting to convey the same land, which is more particularly described in one of the deeds than in the other. In one of these deeds this language appears: “This conveyance is made subject to all incumbrances now existing upon any or all of the lands hereby conveyed.” This deed was authenticated for record before D. T. Bomar, a notary public, on March 14,-1891, and ap[912]*912pears to have been filed for record in Wichita county, Tex., on June 25,1895. In the other deed this language appears: “Know all men by these presents, that we, G. P. Meade and J. Grant Jones, of the county of Tarrant and state of Texas, for and in consideration of the sum of $357,666.66, to us cash in hand paid, and the assumption of all the incumbrances now existing upon the hereinafter described lands by the Western Industrial Company, have this day granted,” etc. This deed also was authenticated for record on the 14th of March, 1891, before D. T. Bomar, notary public, and was filed for record in Baylor county on March 23, 1891. The bill avers, and the answer of the Western Industrial Company admits, that on December 9, 1892, and on divers other dates prior and subsequent thereto, the Western Industrial Company, by its agreement in writing signed by its proper officers thereunto duly authorized, acknowledged itself bound for, and promised to pay to the complainants, the indebtedness evidenced by the notes of Meade, Sommer'ville, and Jones to the complainants. The bill avers, and the answer of the Western Industrial Company admits, that at the special instance and request of that company, and in consideration of $3,201.12 paid on account of the indebtedness evidenced by the notes declared on, the complainants by a contract in writing agreed to and did extend the time of payment of all of the notes, agreeing in detail as to the terms of the extension; and that thereafter the defendant corporation, at different times, paid on the notes divers sums of money, a portion of which was applied to the satisfaction of the interest thereon, and a part to the principal thereof; and that the complainants and the company then made up, settled, and stated an account in writing of all sums of money which the defendant corporation then paid, and which it had before that time paid, on the indebtedness evidenced by the notes in question. On July 1, 1892,. Meade and Jones, by their deed in writing, duly authenticated for record on July 7, 1892, and filed for record in the proper office in Baylor county, Tex., on August 8, 1892, had undertaken to release any lien they had, or might be supposed to have, on any of the land conveyed in the two deeds of February 15, 1891; and both before and after July 1, 1892, and before August 14, 1895, the Western Industrial Company had, by various deeds and other instruments in writing,' duly executed and recorded, in favor of the various other defendants in this bill, conveyed, incumbered, and dealt with the numerous tracts of land constituting the 150,000 acres or more embraced in the deeds of Meade and Jones of date February 15,1891. In this condition of affairs, the complainants in this suit and the Western Industrial Company did, on August 14, 1895, enter into this agreement in writing:

“This agreement, made and entered into by and between Melissa P. Dodge, executrix, and William E. Dodge, Jr., and D. Stuart Dodge, executors, of the will of William E. Dodge, late of the state, county, and city of New York, a certified copy of said will, with its probate, from the surrogate’s court of the county of New York, state of New York, having heretofore been filed in the office of the county clerk of Lampasas county, Texas, parties of the first part, and the Western Industrial Company, a corporation duly incorporated under the laws of the state of Iowa, and having a permit from the state of Texas authorizing it to transact business in Texas, party of the second part, wit[913]*913nesseth that whereas, the estate of Wm. 13. Dodge did heretofore convey to the parties named below the following sections of land situated in Baylor county, Texas, to wit:

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Western Industrial Co. v. Dodge, 101 F. 910, 42 C.C.A. 80, 1900 U.S. App. LEXIS 4485 (5th Cir. 1900).

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