author: McMEANS, J.

text:
    McFADDIN et al. v. WIESS et al.
    (No. 6711.)
    (Court of Civil Appeals of Texas. Galveston.
    April 14, 1914.
    Rehearing Denied May 21, 1914.)
    1. Injunction (§ 133) — Preliminary Mandatory Injunction — Issuance.
    Though a court of equity has jurisdiction to grant preliminary mandatory injunctions, such writ will not ordinarily be granted until final hearing on the merits, and not then unless necessary to complete execution of the court’s decree.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. § 302; Dec. Dig. § 133.]
    2. Injunction (§ 133) — Mandatory Injunction-Issuance beeoRE Trial.
    Where, in a suit for mandatory injunction, the only relief demanded was that a decree be entered compelling defendant F. to sign and acknowledge a certificate of complainant’s election as a trustee of an unincorporated joint-stock association, and no extreme hardship to plaintiff would result from a denial of the writ, the granting of a preliminary mandatory injunction, compelling defendant to execute and acknowledge the certificate of plaintiff’s election before trial of the case on the merits, was erroneous.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. § 302; Dec. Dig. § 133.]
    3.Joint-Stock Companies (§ 16) — Trustees — Vacancy — Appointment Filling — Requisites.
    The articles of a joint-stock company provided that, when a trustee died, there could be no election by the two surviving trustees to fill the vacancy, except as prescribed by the articles, to wit, that the remaining trustees might choose a successor by a declaration in writing to that effect, duly signed and acknowledged by them and by the trustee so chosen, which declaration, when so signed and acknowledged, should be recorded in the records of the county. Held, that a new trustee did not become qualified to act until all of the steps so specified had been taken, and that, where one of the trustees died, the agreement of the other two on plaintiff as the third trustee, and a recital of such fact in the minutes of the meeting at which he was selected, without the due signing, acknowledgment, and record of a declaration to that effect, was insufficient to constitute plaintiff a trustee.
    [Ed. Note. — For other cases, see Joint-Stock Companies, Cent. Dig. § 16; Dec. Dig. § 16.]
    Appeal from District Court, Jefferson County; John M. Conley, Judge..
    Suit by P. H. Wiess and others against W. P. H. McFaddin and others. From an order granting a temporary mandatory injunction, defendants appeal.
    Reversed and rendered.
    F. J. & C. T. Duff and Minor & Minor, all of Beaumont, for appellants. Geo. C. O’Brien, Chenault O’Brien, and George Chilton, all of Beaumont, for appellees.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   McMEANS, J.

The McFaddinv Wiess & Kyle Land Company is a private, voluntary, unincorporated joint-stock association, with a capital stock of $800,000, divided into 8,000 shares, of which W. P. H. McFaddin owns 3,995 shares and L. W. Houk owns 5 shares, or together 50 per cent, of the total capital, and W. W. Kyle owns 2,000 shares, and P. H. Wiess claims to own 2,000 shares, which belonged to his father, V. Weiss, until his death on July 30, 1913. McFaddin, Kyle, and V. Wiess, until his death, composed the board of trustees of the land company from its formation. McFaddin is the president and general manager of the land company and has been since its formation, and Houk is the secretary and treasurer.

On February 6, 1914, P. I-I. Wiess and W. W. Kyle filed their petition, duly sworn to by P. H. Wiess, praying for the immediate issuance of a mandatory order requiring McFaddin “to execute and acknowledge a certificate of the election of the said P. H. Wiess, as trustee”; the plaintiffs alleging that he was eligible to membership on the board, and that he had been duly elected as a member of the board, and the defendants denying that he was eligible, or that he was ever elected as a member of the board. Plaintiffs also prayed for the issuance of an order, in effect forbidding MeFaddin to do anything touching the business of the company, and forbidding MéFaddin and Houk to esecute or draw any checks or drafts on the funds of the company, or to buy, sell, or transfer any notes, securities, or other personal property belonging to it.

On the same day the district judge, in chambers, on presentation to him of plaintiffs’ petition, made an order setting the application down for hearing on February 10, 1914, and granted a temporary restraining order, prohibiting and restraining the defendants from in any manner selling, leasing, or otherwise disposing of property of any kind belonging to the land company, or from mortgaging or in anywise executing contracts, checks, drafts, or any other instruments affecting the liability of the company, or any of its property or assets, or from in any manner transferring or otherwise disposing of the funds of said company; the object and purpose of the order being to hold the property, etc., in statu quo until the further order of the court.

On February 20, 1914, a hearing was had on the plaintiffs’ original and supplemental petitions, and the answer of the defendants, whereupon an order was entered by the coürt granting a temporary mandatory injunction commanding the said W. P. H. MeFaddin to sign and acknowledge before a notary public, or some other officer authorized to take acknowledgments, the certificate attached to plaintiffs’ petition, or one similar in nature, and deliver the same to P. H. Wiess, and also granting a temporary injunction forbidding the defendants from in any manner selling, leasing, or otherwise disposing of any property of any kind belonging to the company, and from incumbering the property with debts, and from executing contracts, notes, checks, drafts, or any other instrument affecting the liability of said company or assets, and from transferring or disposing of any of the funds of the company until otherwise ordered by the court; the object and purpose of this order being, as stated by the judge, "to hold, keep intact and in statu quo all of the property and assets of said company until the defendant W. P. H. MeFaddin shall have complied with the order of this court in matters pertaining to the certificate as hereinabove provided.” The certificate which MeFaddin was required by the judge’s order to sign and acknowledge was to the effect that said “P. H. Wiess is now the duly authorized, elected, and qualified trustee of said MeFaddin, Wiess & Kyle Land Company, as made and constituted under the actions of the two remaining trustees as aforesaid.”

To the ruling of the court the defendants duly excepted, gave notice of appeal, filed their supersedeas appeal bond, and within the time required by law filed in this court the transcript of the proceedings of the court below, and the case is now properly before us for review.

At, the time of the formation of the Me-Faddin, Wiess & Kyle Land Company on June 27, 1904, a code of by-laws for the government of the company was adopted and is now in force. This code is very elaborate, consisting of 28 articles, and we give below the substance of such of the articles as we think material to the questions under consideration and essential to an understanding of the views of this court in reaching the conclusions herein expressed.

Article II provides that the association shall be governed by a board of trustees, and vests the title to all the property of the land company in the board ‘‘as joint tenants and not as tenants in common, in trust for the benefit of all the shareholders, in proportion to the number of shares held by each in this association.”

Articles III and IV are as follows:

“Article III. The shareholders in said association shall have no title to the trust property, which is or may hereafter be vested in the trustees, nor any right to manage, control, alienate, dispose of, mortgage, incumber or deal with the same in any way except by and through the trustees, as hereinafter provided, nor shall any shareholder have any right at law or in equity to demand or require or enforce a partition or dissolution of the trust except as hereinafter provided; and it is hereby declared that the shares in said company shall be and remain personal property, carrying the right of a division or share in the profits of the' company, only until the winding up of the company and the dissolution of the trust, at which time the shareholders shall be entitled to a division of the property and profits then in the hands of the trustees, in the proportion that they hold shares in the company at such time, as hereinafter provided.
. “Article IV. The death of a shareholder during the continuance of this association shall not operate to determine the trust, nor shall it entitle the legal representatives of the deceased shareholder to an. account, or to take any action in the courts, or otherwise; against the trust or the trustees; but the executors, administrators, assigns or legal representatives of the deceased shall succeed to the rights of said decedent in the trust hereby created.”

Article VI provides;

“The certificates of stock shall be signed by a majority of those who are at the time trustees', and countersigned by the treasurer. They shall be transferable only on the books of the company, and shall be in form as follows:”

Then follows the form of the certificate, containing this provision:

“The shares of this association are personal property, and transferable only on the books of the company, in accordance with and subject to the by-laws of the company, and the purchaser or holder accepts the same subject to the declaration of trust and the acceptance thereof, and of the by-laws now or hereafter to be made.”

After the form of the certificate is this provision;

“Shareholders whose certificates stand in their names upon the books of the company shall alone be considered within the terms of this instrument, shall alone be entitled to vote, receive dividends, or be notified as hereinafter provided, or shall have the rights of owners. A shareholder may at any time sell and transfer hia shares, or any of them, but each holder of a share thereunder, or of a certificate thereof, shall be held, by the fact of his acceptance of it, to have assented to this trust, and to the by-laws of the company, and to all instructions duly givén- in pursuance thereof.”

Article IX provides that the company and the trust shall continue for the term of 50 years, and provides a method for sooner terminating the trust by the action of the owners of two-thirds of the' outstanding shares.

Article XI is here given in full:

“Any trustee of said association may resign his trust at 'any time by declaring in writing to that effect, under his hand and seal, duly acknowledged under the statute laws of Texas, and said declaration shall be filed with the other trustees, and after it has been so filed it shall be duly recorded in the deed records of Jefferson county, Texas, and the remaining trustees may choose his successor by a declaration in writing to that effect, duly signed and acknowledged by them and by the trustee so chosen, and said declaration showing the choice of said new trustee shall- be signed and acknowledged by them and recorded in the deed records of Jefferson county, Texas, and the acceptance of the trust thereof shall be signed by the new trustee, and acknowledged by him, according to the statutory laws of the state of Texas, and be filed and recorded in the deed records of- Jefferson county, Texas, which both certificates, taken together, shall be conclusive evidence of the fact that such new trustee was duly chosen. Upon the death or refusal or .inability to act of any trustee to serve in such capacity, a successor in his stead shall be elected by the remaining trustees, and a certificate made, acknowledged and recorded; as hereinbefore provided, and such election and qualification of the new trustee or trustees shall be sufficient to vest all the trust, property, or estate of said company in the new board of trustees, and in like manner and with the same powers and duties as the title and ownership of said property was vested in the original board of trustees. It is expressly provided, however, that whenever the two remaining trustees, after one shall have resigned, died or refused, or become for any reason unable to act, cannot agree upon the selection of the third - trustee, then a meeting of the shareholders shall be called by the two trustees remaining, by.notice as herein elsewhere provided for the -calling of meetings of shareholders, and at such, meeting the shareholders shall choose, from the persons nominated by the two remaining trustees, the third trustee, and this may be done by vote in writing of the holders of the majority of all the outstanding stock of record casting their votes in favor of one of said nominees; and such vote and election shall be certified to by- the two remaining trustees and acknowledged by them, and the certificate recorded in the deed r.ecords of Jefferson county, and thereafter such elected trustee shall be the duly elected and qualified trustee under this trust. But it is further expressly provided that in the case of a vacancy upon the board for any of the reasons named in this article, until the due selection or election of the third trustee, the two remaining trustees shall have ill the powers and duties of the full board until the election of the third trustee takes place; and furthermore, should it ever happen that there are two vacancies on the board of trustees at the same time, the remaining trustee shall call a meeting of the shareholders by Bending out notices, as herein provided, for other called meetings of the shareholders, and at such meeting two trustees shall be selected by the shareholders by a majority vote of all the shares outstanding, and at such time such vote and election shall be certified to and recorded, as herein provided, for other election of trustees; and thereafter the two trustees so elected shall be deemed duly elected and qualified trustees, with all the powers and duties given to trustees under this instrument.”

Article XXVII provides that:

“W. P. H. McFaddin, Valentine Wiess, and W. W. I-Cyle are hereby selected and appointed trustees under this instrument, and they shall hold the position or office until their successors are elected and qualified as herein provided.”

V. Wiess left a will, but, for reasons not necessary to state, it was of noneffect when he died, and his property descended in the ordinary course of descent to- his widow, Mrs. Laura E. Wiess, and son, P. H. Wiess, and daughter, Mrs. Hal H. Branham. Before the filing of this suit, P. H. Wiess acquired from the other heirs of V. Wiess the shares of stock owned by V. Wiess in the land company, but this was subsequent to the time that P. H. Wiess claims to have been elected a trustee by the other trustees, about which more will hereinafter be stated.

On November 13, 1913, McFaddin and Kyle, the surviving trustees, met and agreed upon P. H. Wiess as trustee to succeed his deceased father as a member of the board of trustees, and the record of his election was duly entered upon the minutes of the land company by the secretary, and immediately thereafter, and on the same day, the three met as a board of trustees, and business of the land company was considered and acted upon. A short time after this P. I-I. Wiess caused to be prepared a certificate of his election in conformity with article XI of the by-laws, above set out, and tendered the same to McFaddin and Kyle for their signatures and acknowledgment, which certificate was accompanied by proper acceptance of the trust by P. H. Wiess, with acknowledgment-in due form. The certificate was duly signed and acknowledged by Kyle, but McFad-din, after some delay, refused to sign and acknowledge -the same, and has ever since denied the authority or right of said Wiess as trustee.

At the date of selection by McFaddin and Kyle of P. H. Wiess, as trustee, the books of the association did not show P. H. Wiess to be a shareholder. At a subsequent meeting of the trustees McFaddin and Kyle, the following resolution was passed and entered upon the minutes of the association:

“Mr. McFaddin then moved that the matter of the election and ratification of P. H. Wiess as trustee be left open until some future time when it would be possible to do the same legally, since the books did not show that there was any transfer of stock to the said P. H. Wiess from the V. Wiess estate. Mr. Kyle moved that no action be taken on the same for the present, and that the matter be held up until the same could be legally done. The motion, then carried.”

Afterwards, and before the filing of this suit, P. H. Wiess acquired title to all the shares of V. Wiess’ estate and had his name entered on the proper books of the association showing his ownership thereof, but Mc-Faddin thereafter refused to sign the certificate of his election as trustee on the grounds that P. H. Wiess, at the time of his election, was not the holder of stock, as shown by the books of the company, and because his election has been set aside and the election of a new trustee postponed until some future date.

Appellant, by his third proposition under his second assignment of error, contends in effect that, if McFaddin’s refusal to sign and acknowledge a certificate showing the election of P. H. Wiess, as a trustee, is a breach of duty, then it is so because of the contract constituted by the articles of association, and that such contract cannot be enforced by an interlocutory mandatory order compelling him to perform the act, but that such mandatory order, if proper at all, must follow and not precede a final judgment, wherein the rights of the parties have been duly adjudicated in a suit brought for that purpose, after due service upon the defendant, with opportunity for a trial by jury.

The purpose and only purpose of this suit was to compel the defendant McFaddin to sign and acknowledge a certificate of plaintiff’s election as trustee.

While it is the undoubted right of a court of equity to grant preliminary mandatory injunctions, the more general rule is that such writs will not be granted until final hearing on the merits, and not then, unless necessary to a complete execution of the decree of the court. Joyce on Inj. S. 97a. This author, in the first part of the section referred to, says:

“An applicant for a preliminary mandatory injunction, quite as much as others, is required, however, to show a clear right, and a case of necessity or extreme hardship, and it is declared that a court will seldom grant a mandatory injunction pendente lite unless the plaintiff’s right is so clear that the denial of the right must be either captious or «unconscionable. Therefore the mandatory injunction, which in effect anticipates the judgment or gives some of the relief which it is sought to obtain by the decree of the court, should be granted wjth caution and only when the necessity is great.”

In 22 Cyc. 740, after defining preliminary injunctions and discussing the purpose of their issuance, it is said:

“Their object is to maintain the status quo, to maintain property in its existing condition, to prevent further or impending injury, not to determine the right itself. Therefore, where the issuance of a preliminary injunction would have the effect of granting all the relief that could be obtained by a final decree, and would practically dispose of the whole case, it will not be granted.”

Further on, on page 743, it is said:

“Since an injunction mandatory in its nature generally does more than to maintain the status quo, it is generally improper to issue sucb an injunction prior to final hearing; and it is frequently said that such a preliminary injunction will never issue. * * * If the issuance on preliminary application of an injunction mandatory in nature will have the effect of granting to the complainant all the relief that he could obtain on final hearing, the applica-: tion should be refused, except in very rare cases, and then only where the complainant’s right to the relief is clear and certain.”

The principles quoted from the authorities above cited have been approved by ,the decisions of the courts of this state. Thus in Ort v. Bowden, 148 S. W. 1145, which was an appeal from an order refusing to grant an interlocutory mandatory injunction requiring the defendants to remove certain fences inclosing a baseball park, which constituted an obstruction of certain streets upon which plaintiffs’ property abutted, it was held that the effect of the writ, had it been granted, would have been, not to preserve the status, but that the whole purpose of the suit would have been accomplished by the granting of the injunction prayed for and for that reason the court properly refused to grant it before final judgment.

In Galveston & Western Railway Co. v. City of Galveston, 137 S. W. 724, which was an appeal- from an interlocutory order of the district court refusing a temporary injunction upon the petition of the appellant praying for an injunction against the city of Galveston to restrain it from interfering with the appellant in laying its track along a relocation of its line of railway across certain streets and alleys of the city, this court, in an opinion by Associate Justice Reese, says:

“The effect of the writ, if granted; would have been, not to preserve the status of the property as it had theretofore existed, nor to protect the possession of appellant, nor was it to restore to appellant a possession theretofore enjoyed by it, of which it had been tortiously or fraudulently deprived, * * * but to take from the city the possession and control of a certain portion of its streets and alleys, of which it was and had been in the undisputed control, and to put appellant in possession thereof. * * * Thus the whole purpose of the suit would have been accomplished by a temporary writ of injunction, issued by the court without a trial upon the merits, upon such hearing as could be had upon bill, answer, and affidavits.”

And the judgment appealed from was affirmed.

Simms v. Reisner, 134 S. W. 278, was an appeal from an order of the district court of Harris county granting a temporary injunction restraining Simms from continuing to bore .for oil on certain land claimed by plaintiff. Appellant was in possession of the-property. In deciding the case, Chief Justice Pleasants of this court uses this language:

“An injunction is not a remedy which can be used for the purpose of recovering title or right of possession of property, and it is not the function of a preliminary injunction to transfer the possession of land from one person to another pending an adjudication of the title, except in cases in which the possession has been forcible or fraudulently obtained by the defendant, and the equities are such as to require the possession thus wrongfully invaded to be restored, and the original status of the property to be preserved pending the decision of the issue of title. Jeff Chaison Townsite Co. v. McFaddin, Wiess & Kyle Land Co., 56 Tex. Civ. App. 611, 121 S. W. 716. The trial court did not order the possession of the land delivered to appellees, but he enjoined the appellant from using it for the purpose for which it was leased, and thereby rendered his possession worthless. This should not be done unless the use of the property by appellant would cause injury to appellees against which, they could only be adequately protected by an injunction.”

In International & Great Northern Railway Co. v. Anderson County, 150 S. W. 239, an interlocutory mandatory injunction was granted requiring the railway company, within 60 days from the date of the order, to remove its general offices from the city of Houston to the city of Palestine. In discussing the validity of this order this court, speaking through Chief Justice Pleasants, said:

“ * * * As a general rule a mandatory injunction should not be ordered before a final hearing of the case and for the purpose of executing the judgment of the court. The usual purpose of a preliminary injunction is” to maintain the status quo of the subject-matter of the suit, or to prevent impending injury, and, when the issuance of such injunction would have the effect of granting all the relief that could be obtained by a final decree, it should not be granted, except in cases of extreme hardship.”

It was held that no sufficient emergency was shown in that case to authorize the granting of such an injunction before final hearing. See, also, Mendelsohn v. Gordon, 156 S. W. 1151.

As before stated, the only purpose of this suit was to compel the defendant Mc-Faddin to sign and acknowledge a certificate of Wiess’ election as a trustee. Thus the whole purpose of the suit was accomplished by the granting of the mandatory injunction appealed from, without a trial upon the merits and upon such a hearing only as could be had upon the petition and supplemental petition of the plaintiffs and the answer of the defendant. Under the authorities cited, this should not have been done unless it was shown that a refusal to grant the writ would result in extreme hardship to plaintiff. Certainly no extreme hardship would flow to plaintiff by a denial of the mandatory writ. McFaddin was the owner of nearly 50 per cent, of the stock of the association, and had been its president and general manager from its formation. Under his management great earnings were made, and the shareholders had received, as the result thereof, $650,000 in dividends, and the original capital was not impaired, and the company was practically free from debt. Upon the death of V. Wiess, one of the original trustees, the two remaining trustees by the terms of the bylaws were authorized to continue the business of the association until a successor to the deceased trustee was duly elected in the manner provided by the articles of association. Each of the two surviving trustees had equal voice in the management and conduct of the business. McFaddin was solvent, owning property worth a half million dollars. No intentional mismanagement or corrupt action upon his part could- have injured plaintiff’s one-fourth interest or lessened the earnings that would not have also injured McFaddin’s one-half and lessened his earnings, and there is nothing to raise the presumption, much less to show, that McFaddin, to injure the plaintiff or the association, would inflict pecuniary injury upon himself. If, as alleged by the plaintiff, Kyle has refused to act as trustee with McFaddin, his default and dereliction cannot be charged to McFaddin. If he does act with him, each being entitled to one vote in the management of the business, it is impossible that McFad-din could by his acts harm the company, even if he were so inclined. No possible harm could be accomplished by either without the concurrence of the other. McFaddin has shown by his answer that he is ready and willing to act with Kyle.

We hold that the mandatory injunction was improperly granted. As the prohibitory injunction was granted for only such time, and until McFaddin should comply with the mandatory injunction, it necessarily follows, inasmuch as the mandatory injunction cannot be permitted to stand, that the prohibitory injunction falls with it. But we need not rest our decision upon this ground alone, but upon the further ground that plaintiff P. H. Wiess has never, in our opinion, been elected trustee by the surviving trustees, McFad-din and Kyle.

We are clearly of the opinion that the agreement of the other two trustees upon P. H. Wiess as the third trustee, and a recital of such fact in the minutes of the meeting did not, under the by-laws of the association, make him a trustee, but was merely one link in his chain of title to the office, which chain was not complete until full compliance with each of the conditions precedent to his right to be a trustee, as prescribed in article XI. It appears by the terms of article XI that, when a trustee dies, there can be no election by the two surviving trustees, save in the manner prescribed in that article, which is:

“The remaining trustees may choose his successor by a declaration in writing to that effect, duly signed and acknowledged by them and by the trustee so chosen, and said declaration showing the choice of said trustee shall be signed and acknowledged by them and recorded in the deed records of Jefferson county, Tex.,” etc.

In the next sentence provision is made for the election of a trustee to fill a vacancy on the board caused by the death of one of the trustees, but in this provision the words “declaration in writing” are not used, but instead it is provided that he shall be elected by the remaining trustees, “and a certificate made, acknowledged, and recorded as hereinbefore - provided.” We think the argument advanced by appellant in support of this construction of the by-laws is sound, and' adopt it as a part of our opinion.

It is manifest that the word “declaration” there used is intended to be synonymous with the word “certificate” used later on in the same article touching the choice of a trustee, where a trustee dies or refuses or is unable to act, though the language, in case of resignation, is that the remaining trustees may choose his successor by “a declaration in writing.” The last words of that provision contained in that first sentence of article XI in respect to the signing and acknowledgment of the declaration and of the acceptance by the new trustee and the filing and recording of them in the deed records are:

“Which both certificates, taken together, shall be conclusive evidence of the fact that such new trustee was duly chosen.”

Manifestly the word “which” means, from the context, the same thing as if it had provided in terms that after a trustee had resigned in the prescribed manner, after the two remaining trustees had made their declaration in writing of their choice of the new trustee, after that written declaration had been signed and acknowledged by .them and by the new man, after it and the written acceptance by the new trustee had been signed and acknowledged by him, after all these things had been done, then those things, “taken together, shall be conclusive evidence of the fact that such new trustee was duly chosen.” Can it be claimed that anything less “shall be conclusive evidence of the fact that such new trustee was duly chosen”? Is it not true that in case of resignation the new man is not duly elected and qualified until all of those prescribed things have been done? The next following provision in that article XI is for the case of the death or refusal or inability to act of any trustee. This provision, each step in the procedure having been precisely prescribed, is briefer than the preceding provision, being:

“A successor in his stead shall be elected by the remaining trustees, and a certificate made, acknowledged, and recorded, as hereinbefore provided.”

This manifestly means that precisely the same procedure must be gone through, precisely the same steps must be taken to elect a new trustee, in ease of death, refusal, or inability to act, as in a case of resignation. The article then, in the same sentence, after the words “as hereinbefore provided,” proceeds:

“And such election and qualification of the new trustee or trustees shall be sufficient to vest all the trust property or estate of said company in the new board of trustees and in like manner and with the same powers and duties as the title and ownership of said property was vested in the original board of trustees.”

What can these words mean, except that the new man is not elected and qualified until the very last of the prescribed steps have been taken? How can it be construed to mean anything but that after the two trustees have signed and acknowledged their written certificate or declaration indicating their choice, after the new man has also signed and acknowledged that same paper, after he has signed and acknowledged his written acceptance, after both of these papers have been filed and recorded, then, and not until then, has the “election and qualification” taken place?

Further, this second sentence in article XI, whilst relating directly to the election of a new trustee upon the death or refusal or inability to act of a trustee, must be construed in connection with the entire article, and especially with the preceding sentence, which relates to the election of a new trustee in a case of resignation. Hence the words in the second sentence, “and such election and qualification of the new trustee or trustees shall be sufficient to vest all the trust property or estate of said company in the new board of trustees and in like manner and with the same powers and duties as the title and ownership of the said property was vested in the original board of trustees,” apply to any vacancy filled by the two trustees. If this be not true, if the words quoted apply only to the ease of a trustee dying, refusing or being unable to act, then it would follow that, iri case of a resignation, “such election and qualification” would not be sufficient to vest all the trust property, etc., in the new board in like manner and with the same powers and duties as in the case of the original board.

The third sentence in article XI is a proviso embracing each of the grounds of vacancy before provided for, resignation, death, refusal or inability to act, and relates to the case where the two remaining trustees “cannot agree upon the selection of the third trustee”; then a meeting of the shareholders is to be called and the shareholders are to fill the vacancies, upon nomination of the two remaining trustees, “and this may be done by vote in writing of the holders of the majority of all the outstanding stock of record, casting their votes in favor of one of said nominees; and such vote and election shall be certified to by the two remaining trustees and acknowledged by them and the certificate recorded in the deed records of Jefferson county, and thereafter such elected trustee shall be the duly elected and qualified trustee under this trust.” Here again is emphasized the provision running all through this article that election to the board is not the result of a single step, but the culmination of the various steps prescribed, till the last one of which is taken there is no election.

The final paragraph of article XI reads:

“But it is further expressly provided that in the case of a vacancy upon the board for any of the reasons named in this article, until the due selection or election of the third trustee, the two remaining trustees shall have all the powers and duties of the full board until the election of the third trustee takes place.”

This is the second proviso in the article and in terms applies to any vacancy, however happening, upon the board. How can it be maintained that there has been “the due selection or election of tlie third trustee” until everything has been done that this article prescribes as constituting election and qualification? How can it be claimed, in the face of this express provision, that the two trustees lack any of the powers' and duties of the full board merely because one of those steps has been taken, as, for example, the agreement by the two trustees upon a third man?

The final part of this final paragraph provides for the case of two vacancies on the board at the same time, and directs that vacancies are to be filled by the shareholders, “and at such times such vote and election shall be certified to and recorded as herein provided for other elections of trustees; and thereafter the two trustees so elected shall be deemed duly elected and qualified trustees, with all the powers and duties given to trustees under this instrument.” Does “thereafter” mean anything but that (1) after the meeting, (2) after the majority vote, (3) after the vote and election have been certified to, and (4} after the certificate has been filed and recorded, then, and not till then, are the two trustees so elected “deemed duly elected and qualified trustees” ? Can it be that after the first two steps, or the first four, have been taken, the two new men “shall be deemed duly elected and qualified trustees”?

The article in each of the two provisions touching the filling of a vacancy in the board, by the shareholders, uses this word “thereafter” to show explicitly that till then the new man is not duly elected and qualified. But it cannot be maintained that any different rule prevails where the vacancy is filled by the two trustees. The words in the second sentence of the article, “and such election and qualification of the new trustee or trustees shall be sufficient to vest all the trust property,” etc., in the new board, apply alike, as we think we have shown, to' any vacancy filled by the two trustees. Those words can mean only that nothing less than, nothing short of, full compliance with each requirement “shall be sufficient” to constitute “the due selection or election of the third trustee.”

It follows from these conclusions that the judgment granting the injunctions should be reversed, and that judgment should be here rendered vacating the same; and it has been so ordered.

Reversed and rendered.


source: Caselaw Access Project

author: PLEASANTS, C. J.

license: Public Domain

text:
    CLARKE v. A. B. FRANK CO.
    (No. 6541.)
    (Court of Civil Appeals of Texas. Galveston.
    April 30, 1914.
    Rehearing Denied May 28, 1914.)
    1. Venue (§ 5) — Trespass to Try Title-Removal of Cloud from Title — Statutory Provisions.
    Under Rev. St. 1911, art. 1830, 'subd. 14, providing that suits for the recovery of lands, to quiet title thereto, and to remove incum-
    brances thereon, must Be brought in the county where the land lies, the district court of the county where land lies has jurisdiction of a 'suit of trespass to try title to the land, and to remove a cloud from the title, cast by a claim of defendant to a lien under a deed of trust, and a judgment of the district court of another county foreclosing the lien.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 4 — 11; Dec. Dig. § 5.]
    2. Appeal and Error (§ 754) — Questions Reviewable — Assignments of Error.
    Where a temporary injunction was dissolved long before the trial of the case, the authority of the trial court to issue the injunction could only be material on the question of costs, which could not be considered in the absence of an assignment of error presenting it.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3086-3089; Dec. Dig. § 754.]
    3. Appeal and Error (§ 499) — Questions Reviewable — Assignments of Error — Rulings on Pleadings.
    Where the record does not show any ruling on a demurrer and exceptions to the petition, nor that any demurrer or exceptions were filed, an assignment of error complaining of the refusal to sustain a demurrer and special exception cannot be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. § 499.]
    4. Appeal and Error (§ 742) — Questions Reviewable — Assignments of Error — Rulings on Pleadings.
    An assignment of error complaining of the failure of the court to sustain a general demurrer and a special exception to the supplemental petition, not followed by a proposition as required by the rules, nor by any statement disclosing what special exceptions were presented, or what ruling was made thereon, will not be considered on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    5. Mortgages (§ 499) — Foreclosure—Judgment.
    Where a judgment foreclosing a mortgage was procured by fraud of the mortgagee and one of the mortgagors for the purpose of defrauding the mortgagor’s creditors, the court properly refused to recognize and foreclose the lien established by the judgment as against the other owners of the property, and a provision in the judgment reviving the money judgment against th'e mortgagor who was a party to the fraud did not affect the part pf the judgment refusing to establish the lien.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 1478-1485; Dec. Dig. § 499.]
    6. Appeal and Error (§ 742) — Questions Reviewable — Assignments of Error — Proposition.
    An assignment of error complaining of the admission of evidence, not followed by a proposition, and not a proposition in itself, cannot, be considered on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3009; Dec. Dig. § 742.]
    7. Mortgages (§ 151) — Priorities.
    A judgment foreclosing a senior mortgage, notwithstanding the payment of the debt, with intent to defraud creditors of the mortgagor, does not affect the right of a junior lienholder, who was not a party to the suit, and the junior lienholder, by such payment, became a first lienholder.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 307, 309-311, 314-329, 332-336; Dec. Dig. § 151.]

      8. Judgment (§ 486) — Collateral Attack.
    A judgment foreclosing a mortgage, after payment of the debt secured, is void as to a junior lienholder and creditor of the mortgagor, who is not a party to the suit, and he may, as authorized by Rev. St. 1911, art. 3966, collaterally attack the judgment.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 919-923; Dec. Dig. § 486.]
    Appeal from District Court, Walker County; S. W. Dean, Judge.
    Action by the A. B. Frank Company against Charles Clarke and others, prosecuted after the death of Charles Clarke against Charles Clarke, Jr., as administrator. From a judgment for plaintiff, defendant Charles Clarke, Jr., administrator, appeals.
    Affirmed.
    Geo. G. Clough, of Galveston, and Hill & Elkins, of Huntsville, for appellant. Dean, Humphrey & Powell, of Huntsville, for appel-lee.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

   PLEASANTS, C. J.

This suit was originally brought by appellee, a private corporation, against Charles Clarke, Bettie Ward, Lula Ward, Katie Ward, and Minnie Ward. The suit is one of trespass to try title, and for partition. The land involved is an undivided one-fourth interest in three several tracts of land in Walker county, fully described in the petition. In addition to the proper and usual allegations in an action of trespass to try title, and for recovery of rents and damages, the original petition, filed on November 9, 1908, alleges in substance that the defendants Ward are the owners of an undivided four-fifths of the land described in the petition, and are cotenants with plaintiff, the owner of an undivided one-fifth, and said defendants have excluded plaintiff from the possession of said premises, and have collected and appropriated all of the rents and revenues arising therefrom, and have failed and refused to pay plaintiff its portion of said rents, which it is alleged amounts to the sum of $2,000; that the defendant Charles Clarke has no interest in said lands, but is asserting some claim of title thereto, the exact nature of which is unknown to plaintiff, and the assertion of which casts a cloud upon the plaintiff’s title. This petition then sets out the title under which plaintiff claims; the title so alleged being deraigned through deeds of trust executed by R. H. Ward and defendants Lula Ward and Katie Ward on February 6 and February 11, 1898, respectively, and judgment of foreclosure and sale thereunder. It is then alleged that plaintiff is informed that defendant Clarke is asserting some right, title, or interest in the lands under a deed of trust executed by R. H. Ward and A. J. Ward to Charles Clarke, Jr., trustee for R. T. Ervin & Co., executed on January 3, 1S98, and a judgment of the district court of Wharton county foreclosing the lien created by said deed of trust rendered in said court on May 14, 1900, in suit styled G. C. Gifford & Co. v. R. H. Ward et al., which judgment was transferred to Charles Clarke without recourse on May 19, 1900, and a certified copy thereof was recorded in the deed records of Walker county on April 18, 1907; but no order of sale or execution was issued upon said judgment until October 31, 1907. The petition further alleges:

“That plaintiff further represents and shows to the court that the indebtedness of R. H. Ward and A. J. Ward to R. T. Ervin & Co., described in the deed of trust from the said R. H. and A. J. Ward to Charles Clarke, Jr., trustee as aforesaid, was paid off and discharged long prior to the institution of the suit of G. C. Gifford & Co. against .R. H. Ward et al., in the district court of Wharton county, Tex., and before the rendition of said judgment, as aforesaid, by reason whereof said judgment was void, and of no force and effect ab initio.
“The plaintiff further represents and charges the fact to be that said suit was instituted and judgment obtained by fraud and collusion between the parties thereto, and for the sole purpose of hindering and delaying the creditors of the said R. H. Ward, and especially this plaintiff, which was then, and for a long time prior thereto had been, a creditor of the said R. H. Ward.
“Plaintiff further represents and charges the fact to be:
“That prior to the institution of the suit by G. C. Gifford & Co. against the said R. H. Ward et al., in the district court of Wharton county, Tex., and before the rendition of the judgment in said cause, there had been a full and complete settlement of all the matters between the said R. H. Ward and the said R. T. Ervin & Co., whereby all and singular the entire indebtedness at any time theretofore owing by the said R. H. Ward to the said R. T. Ervin & Co. was fully paid off, satisfied, and discharged, and the original deed of trust given to R. T. Ervin & Co. was satisfied and delivered over to this plaintiff. That the note declared on in the said suit of G. C. Gifford & Co. v. R. H. Ward et al. was executed on the 3d day of January, 1898, by R. H. Ward and A. J. Ward in favor of R. T. Ervin & Co., a partnership firm alleged and purporting to have been composed of R. T. Ervin and Charles Clarke, which said note was for the principal sum of $4,000, and was payable one day after date to the order of the said R. T. Ervin & Co., at Wharton, Tex. That said note was not transferred before the maturity thereof, and in due course of trade, but was fraudulently and fictitiously transferred by the said R. T. Ervin & Co. more than one year after the due date thereof, to wit, on or about the 23d day of March, 1899, without consideration, and for the sole and only purpose of concealing the assets of the said R. H. Ward from his creditors, and for the purpose of putting the apparent title of the property of the said R. H. Ward described in said trust deed securing said note, beyond the reach of his creditors, and beyond the reach of this plaintiff.
“That, by reason of the premises, the defendant Charles Clarke is asserting some right, title, lien, or claim against the lands and premises hereinbefore described, and is threatening to cause an order of sale to be issued out of the district court of Wharton county, Tex., upon the said judgment for the purpose of having the lands and premises hereinbefore described sold to satisfy said fraudulent and fictitious judgment : and the said Charles Clarke has theretofore caused to be issued out of the district court of Wharton county, Tex., in said cause, an order of sale, and caused the same to be levied upon said premises, and if the defendant Charles Clarke shall be permitted to cause said lands and premises to be sold by virtue of an order of sale issued, or hereafter to be issued by the district court of Wharton county, Tex., upon said pretended, fictitious, and void judgment, the same will cause a cloud upon the plaintiff’s title in and to said land and premises, and will result in great and irreparable damage and injury to this plaintiff.
“That the plaintiff has no adequate remedy at law to prevent the damage and injury threatened by the defendant Charles Clarke, and invokes this honorable court’s most gracious writ of injunction to restrain and prohibit the defendant Charles Clarke from attempting to seize or cause to be seized and sold said lands and premises under said' pretended, void, and fictitious judgment, and commanding him to refrain during the pendency of this suit from further attempting to have said lands and premises seized, levied on, sold, or conveyed under and by virtue of any order of sale heretofore issued or hereafter to be issued out of the district court of Wharton county, Tex.
“Wherefore, premises considered, plaintiff prays the court that the defendants be cited in terms of law to appear and answer this petition ; that the writ of injunction be granted as hereinbefore prayed for, and that upon a hearing hereof the plaintiff recover the title to and possession of the lands and premises hereinbe-fore described; that it be quieted in its title to and possession thereof; that it have judgment canceling and declaring void, and of no force and effect, the judgment of the district court of Wharton county, Tex., in cause No. 2987, styled G. C. Gifford & Co. v. R. H. Ward; that the defendant Charles Clarke be perpetually enjoined from causing an order of sale or execution to be issued out of said court upon said judgment, and be perpetually enjoined from causing to be sold the lands and premises here-inbefore described, under any process heretofore issued, or that may be hereafter issued out of said court upon the said judgment; that the plaintiff have judgment for the restitution and partition of said premises, and for its share and interest in the rental value of said premises, and in the rents and revenues collected by the defendants Bettie, Bula, Katie, and Minnie Ward from said premises for the years 1907 and 1908; that commissioners of partition be appointed to partition and divide said lands and premises among the parties plaintiff and defendants as the court may find them to be entitled, and for such other and further relief, both general and special, legal and equitable, to which the plaintiff may be entitled, as in duty bound it will ever pray.”

Upon the filing of this petition, a temporary injunction was granted as prayed for; but it appears from the record that by its terms said injunction was only to remain in force until the next term of the court after the suit was filed. On October 4, 1910, the following order was made and entered in the minutes of the trial court:

“A. B. Frank Company v. Charles Clarke et al.
“In the District Court of Walker County, Texas. On this the 4th day of October, A. D. 1910, the above cause was called, and it appearing to the court that the preliminary order for injunction in said cause has never been extended beyond the first day of the term of court to which the writ of injunction was returnable, and that the injunction heretofore granted in this cause at the instance of the plaintiff has lapsed, and it is here now adjudged that said injunction has lapsed, and is not in force, and the cause is continued generally, but with the express provision that said injunction is not to continue in force.”

Plaintiff’s third amended petition, upon which the cause was tried, was filed on April 3, 1911. This petition is against Charles Clarke, Jr., as administrator of the estate of Charles Clarke, deceased, Lula Ward, Katie Ward, Minnie Ward, and J. W. Farris, sheriff. After the usual allegations in a suit of trespass to try title, it is alleged that since the filing of the original petition the defendant Bettie Ward had died, and her one-fifth interest in the land had vested in her three sisters, Lula, Katie, and Minnie, and her brother, R. H. Ward, and that plaintiff had purchased and was the owner of the one-twentieth interest so inherited by said ,R. H. Ward, which, added to the one-fifth interest owned by plaintiff at the institution of the suit, made plaintiff’s interest in said land an undivided one-fourth. Plaintiff does not plead its title in this petition.

After alleging that the defendant Charles Clarke, neither as administrator nor individually, has any right or title to said land, the petition proceeds:

“But said defendant Charles Clarke, Jr., individually or as administrator of said estate, or in both capacities, is asserting some claim of title in and to said premises, the exact nature of which is unknown to plaintiff, and is asserting some kind of claim under a certain deed of trust executed by R. H. Ward and A. J. Ward to Charles Clarke, Jr., for the benefit of R. T. Ervin & Co., on the 3d day of January, 1898, which said deed of trust is of record in volume D, pp. 198 to 203, inclusive, of the real estate mortgage records of Walker county, Tex., and is also asserting some kind of lien under and by virtue of a judgment of the district court of Wharton county, Tex., rendered on May 14, 1900, in the suit of G. C. Gifford & Co. v. R. H. Ward et al., in which the aforesaid trust deed was merged, and wherein there was a foreclosure of the lien undertaken to be created in said trust deed to secure the judgment therein rendered in favor of the plaintiff for the sum of $4,945, with interest from the date of said judgment at the rate of 10 per cent, per an-num, and for the sum of $494.55 as attorney’s fees, as well as all costs of suit.
“The aforesaid trust deed was merged in the judgment foreclosing the pretended lien thereof. The plaintiff says that said trust deed and the judgment in which the same was merged are now of no force and effect for that the said trust deed and the indebtedness therein described was fully paid off and satisfied by the said R. H. Ward, and by the securities other than said land placed with the said R. T. Ervin & Co. by the said R. H. Ward and A. J. Ward and others to secure the payment of said indebtedness, and said trust deed and judgment into which the same were merged are of no force and effect for the further reason that there was no execution or other process sued out or issued on said judgment within 12 months after the rendition of said judgment, said judgment and lien are now wholly barred by the statute of limitation of 10 years.
“The assertion of claim of title to and the assertion of claim of the existence of said lien upon said premises by the said Charles Clarke, either in his individual capacity or as administrator aforesaid, casts a cloud upon plaintiff’s title and interest in and to said land and premises ; and the defendant J. W. Farris is also asserting some claim to said premises, the nature of which is unknown to plaintiff, but which constitutes and is a cloud upon plaintiff’s title thereto.
“Wherefore, premises considered, plaintiff prays that upon a hearing hereof it have judgment for the title and possession of its undi-Tided one-fourth interest in said lands and premises, and judgment removing the cloud from its title caused by the assertion of claim thereto or lien upon same by the defendant Charles Clarke, individually and as the administrator of the estate of Charles Clarke, Sr., deceased, and for the removal of the cloud upon its title occasioned by the assertion of claim to said premises by the defendant J. W. Farris, as aforesaid, and for judgment for the restitution and partition of said premises, and for its share and interest in the rental value of said premises and the rents and revenues collected by the defendants Lula, Katie, and Minnie Ward therefrom for the years 1907, 1908, 1909, and 1910, respectively; that commissioners of partition be appointed to divide and partition said lands and premises among the parties, the plaintiff and the said defendants Lula, Katie, and Minnie Ward, as the court may find them, respectively, entitled; that plaintiff have judgment for all costs in this behalf incurred, and for such other and further relief, both general and special, as it may be entitled in law or equity.”

On October 9, 1911, defendant Charles Clarke filed his first amended answer, in which, after pleading a defect of parties, he denies generally the allegation' of plaintiff’s petition, and pleads not guilty. This answer also contains the following:

“And for further answer herein, without waiving in any manner any or either of the foregoing answers and pleas, but expressly relying upon the same, the defendant Chas. Clarke comes and says:
“That on and about the 3d day of January, 1898, R. H. Ward and A. J. Ward made, executed, and delivered their certain deed of trust to Charles Clarke, Jr., as trustee for the use of Ervin & Co., and conveyed to said trustee, for the better securing of one promissory note of $4,000 and interest, their undivided two-thirds interest in and to the lands and premises described in the petition of the plaintiff. That said deed of trust, and the lien thereby created, and the debt therein secured, is owned and held by the estate of Charles Clarke, of which the defendant Charles Clarke, Jr;, is administrator, or by the estate of Charles Clarke, Sr., deceased, May Ervin, Robt. Ervin, and Mary Ervin jointly, as charged in the petition of the plaintiff. That the same is a valid and existing debt and lien. That on and about the 2d day pf January, 1909, it was agreed by and between the heirs of Charles Clarke, deceased, May Er-vin et al., and the trustee in said deed of trust mentioned, that George C. Clough, of the county of Galveston and state of Texas, be appointed to collect, for the purposes of ’distribution among the parties thereto entitled, all the remaining assets of the estate of Charles Clarke, deceased, which included his interest in the deed of trust and the debt thereby secured above mentioned, and that said George C. Clough has been appointed in writing by the heirs of Charles Clarke, deceased, and by the survivor in community, the wife of the said Charles Clarke, Sr., and by the administrator of the estate of Charles Clarke, deceased, and by all the parties interested in said note and deed of trust, as a substitute trustee, under the powers conferred in said deed of trust, with all the powers and authority of the said Charles Clarke, Jr., trustee aforesaid.
“That acting under such power and the appointment so made, and by virtue of the authority conferred upon such substitute trustee in said deed of trust, the said substitute trustee has levied upon and posted notices advertising said two-thirds interest for sale, at public outcry before the courthouse door of Walker county, Tex., on November 7, 1911, between the legal hours of sale, to satisfy the debt herein secured to be paid, and in accordance with the terms of said deed of trust.
“That the plaintiff claims title to an undivided one-fifth and to a remaining one-twentieth by and through and under a deed of trust made and executed by R. H. Ward, under date of February 26, 1898, or through other instruments executed subsequent to the deed of trust owned by the estate of Charles Clarke, Sr., and that, at the time of the acceptance of said instruments through which the “plaintiff claims, it had full knowledge, actual and constructive, of the existence of the outstanding deed of trust owned and held by Charles Clarke, Sr., et al., and that it fully ratified and confirmed the validity of the said deed of trust, and contracted to and with said R. H. Ward and with the grantors in the plaintiff’s conveyances, if any, with _ the knowledge of their existence, and fully ratified and confirmed the validity of the deed of trust claimed by the estate 'of Charles Clarke, Sr., et al., and the debt therein secured, and by reason of all of which the plaintiff is estopped to question the validity of the deed of trust aforesaid, or the existence of the debt therein secured to be paid.
“AVherefore, premises considered, it is prayed that the suit of plaintiff be abated, for want of proper and necessary parties, as hereinbe-fore stated and prayed for; but, should same be denied, then it is prayed that the defendants herein go hence without day and recover their costs, and that if any character of judgment or relief be awarded to the plaintiff, or to any of the defendants or parties to this suit, that the rights of the estate of Charles Clarke, Sr., et al., in and to said deed of trust to the debt herein mentioned, and of the said George C. Clough, substitute trustee aforesaid, be preserved, and that should the debt mentioned not be paid on or before the 7th day of November, 1911, or the day of sale, that the decree herein rendered, if any be rendered the plaintiff or any other party to this action, shall not in any manner affect the force and validity of the said sale to be made, or the title therein to be conveyed, but the decree herein, if any, shall be without prejudice to the rights of any purchasers at such sale, if such sale shall take place.
“And defendants pray for such other and further relief as they might be hereunto entitled at law or in equity on the case made, and for all costs'of court in this behalf incurred.”

In a second supplemental petition filed by the defendant Clarke on March 11, 1912, said defendant, by way of cross-action, sets up the judgment of the district court of Wharton county in the case of Gifford & Co. v. R. H. Ward et al. in favor of plaintiff in said suit for the sum of $4,945.55, with interest at 10 per cent, from the date of said judgment, May 14, 1900, and the further sum of $494.55 attorney’s fees, and foreclosing a mortgage Ren against the interest of R. H. Ward, Lula Ward, Bettie Ward, Katie Ward, and Minnie Ward, defendants in said judgment, in the land in controversy in this suit; the transfer of said judgment to Charles Clarke, deceased, for a valuable consideration, the appointment of said defendant as the administrator of the estate of said Charles Clarke; that no part of said judgment has been paid; that said R. H. Ward some time in the year 1903 left the state of Texas and has been continuously absent since said time; that Bettie Ward died intestate on or about the 5th day of January, 1909, and no administration was taken out on her estate; and that defendant administrator, by an order. of court issued on January 5, 1908, was enjoined from attempting to collect said judgment or to levy an order of sale or execution upon the lands upon which the lien was foreclosed by said judgment, which injunction was dissolved on October 4, 1910. This cross-bill then presents the following allegations and prayer:

“Your petitioner herein would show to the court that no order of sale or execution issued on the said judgment of Gifford v. Ward et al. within 12 months after the rendition thereof, and to the end that the estate your petitioner is appointed administrator upon may have and receive the right, title, benefit, and advantage accruing to each by reason of being the owner of the said judgment and liens sought'to be enforced and foreclosed therein, your petitioner prays that notice of the filing of this cross-action be served upon the defendants R. H. Ward, Lula Ward, Katie Ward, and Minnie Ward, individually, and as heirs at law of Bettie Ward, deceased, and as heirs at law of A. J. Ward, deceased, and upon final hearing hereof that they have judgment against the said R. H. Ward, Tula Ward, Katie Ward, and Minnie Ward for the amount of their debt as represented by the amount of said judgment No. 2987, entitled Gifford & Co. v. Ward et al., in the district court of Wharton county, Tex., with interest and costs, and that the liens mentioned and described in said judgment upon the lands therein •described be enforced and foreclosed, and the same be sold by proper order of sale, and the proceeds thereof applied to the satisfaction of the plaintiff’s debt, with interest and cost; and your petitioner prays for such other and further relief as he might be hereunto entitled to at law or in equity on the case made, and for all costs of court in this behalf incurred or expended.”

The answer of defendants Ward to plaintiff’s petition need not be set out; it being sufficient to say that they entered a general denial and plea of not guilty, .and especially pleaded the invalidity of plaintiff’s claim of title to a portion of the land for which plaintiff sues.

The pleadings of plaintiff and the defendant Clarke are voluminous and consist of numerous supplemental answers and petitions, and also “amended supplemental pleadings.”

From the confusing mass of allegations and averments contained in the pleadings, we believe we have stated all that is pertinent to issues presented by appellant’s brief.

The trial in the court below, without a jury, resulted in a judgment in favor of plaintiff against all of the defendants for an undivided one-fourth interest in all of the lands described in the petition, except two tracts of 183% and 21% acres, respectively, which were adjudged to the defendant Minnie Ward, and against the defendants Lula, Katie, and Minnie Ward for the sum of $626.-42 rents. It was further adjudged that defendant Charles Clarke on his cross-action have and recover of defendant R. H. Ward the sum of $4,945.55, with interest at 10 per cent, from May 14, 1900, and the further sum of $494.55, with interest at 6' per cent, from last-named date, but that he take nothing on his prayer for foreclosure of lien claimed by him on the property in controversy. It was further adjudged:

“That the cloud upon plaintiff’s title to the land herein adjudged to plaintiff, occasioned by the assertion by the defendant Charles Clarke, Jr., either as administrator aforesaid, or in his individual capacity, of a lien upon said land or any part of it, on account of the execution by R. H. Ward and A. J. Ward to the said Charles Clarke, Jr., as trustee for R. T. Ervin & Co., of a trust deed for the benefit of R. T. Ervin & Co., on the 3d day of January, 1898, which said trust deed is of record in volume D, pp. 198 to 203, inclusive, of the real estate mortgage records of Walker county, Tex., on account of the assertion of the claim of a lien by said defendant Charles Clarke, Jr., as administrator, or in his individual capacity, and by virtue of a judgment of the district court of Wharton county, Tex., rendered May 14, 1900, in the suit of G. C. Gifford & Co. v. R. H. Ward, be removed.”

Costs were adjudged in favor of plaintiff against the defendant Clarke, in so far as same were incurred by reason of the issues raised by said defendant against plaintiff. The defendants Lula, Minnie, and Katie Ward were each adjudged the owners of an undivided one-fourth of all of the land, except the two tracts before mentioned, which were adjudged to defendant Minnie Ward. Partition was ordered in accordance with the foregoing.

The first assignment of error, which is presented as a proposition, is as follows:

“The court erred in assuming jurisdiction and authority to hear and determine this cause and suit, because this suit was commenced and continued by plaintiff A. B. Frank Company as a suit to cancel and declare void a judgment of the district court of Wharton county, Tex., and the district court of Walker county is without jurisdiction or authority so to do.”

It is manifest from the foregoing statement of the pleadings that this suit is not one to cancel and declare void the judgment of the district court of Wharton county set out in plaintiff’s petition, but is a suit of trespass to try title to lands situated in Walker county brought against appellant and other defendants, and to remove cloud from title cast by the claim of appellant to a lien upon said lands under the deed of trust described in the petition and a judgment of the district court .of Wharton county foreclosing the lien given by said deed of trust. There can be no question that the petition presented a cause of action of which the trial court had jurisdiction, and that appellant’s general demurrer was properly overruled. Section 14, art. 1830, Revised Statutes 1911.

Whether Or not the appellee could in this proceeding be permitted to question the validity of the judgment of the district court of Wharton county is a question not raised by this assignment of error.

Nor is the question of the authority of the district court of Walker county to issue the temporary injunction restraining the execution of the judgment of the district court of Wharton county involved, in this appeal. The record shows that the injunction was dissolved.long before the trial of the canse in the court below, and the authority of the court to issue the injunction would only be material upon the question of costs; and there is no assignment presenting such question.

We think it clear that the court did not err in assuming jurisdiction to hear arid determine this cause, and the first assignment of error above set out must be overruled.

The second assignment of error complains of the refusal of the court to sustain appellant’s general demurrer and special exception to plaintiff’s first amended original petition.

The record does not show any ruling of the court in the demurrer and exception mentioned in the assignment, and in facts fails to show that any such demurrer or exception was filed by appellant. In this state of the record the assignment is worthless.

The third assignment, which complains of the failure of the court to sustain appellant’s general demurrer and special exception to plaintiff’s first supplemental petition, it without merit. The assignment is not followed by a proposition as required by the rules, and we are not advised by any statement under the assignment what special exceptions were presented to the plaintiff’s first supplemental petition, nor what ruling was made by the court on such exceptions. We have already held, in passing upon the first assignment of error, that the general demurrer to the petition was properly overruled.

The fourth assignment of error and the proposition thereunder are as follows:

“The court erred in denying the defendant Clarke a decree foreclosing his judgment lien upon the property described in his cross-action against R. H. Ward et al., and in rendering a money judgment in favor of the defendant Clarke against R. H. Ward only.”
Proposition.
“The defendant Clarke, as administrator of the assignee, brought cross-action after the court had overruled his demurrer, and taken jurisdiction of the case against the original defendants in the Wharton county suit to revive the judgment if the same was dormant as against the defendants only in such judgment. The defendants answered generally only; but the plaintiff in the suit not a party to the cross-action pleaded in his original suit that the debt forming the basis of the judgment sought to be revived was paid before its rendition, and the judgment was thus obtained by fraud. The judgment of the trial court on the cross-action was for the administrator for a money judgment only against R. H. Ward, but without foreclosure, and we assert that as the only attack made by the plaintiff in his suit against the judgment was that the debt upon which the judgment was based was paid before its rendition, that a money judgment in favor of the defendant in the cross-action, but denying Mm a foreclosure, was error.”

As we understand this proposition, the contention is that, the court having rendered a money judgment on appellant’s cross-action against the defendant R. H. Ward for the amount due upon the Wharton county judgment, it necessarily follows that judgment should have been rendered foreclosing a lien upon the property described in said cross-bill. The proposition is not sound. The judgment of the court being in favor of plaintiff upon the issue of the payment of the indebtedness for which the mortgage lien foreclosed in the Wharton county judgment was given, and the issue of the procurement of said judgment by fraud and collusion on the part of plaintiff therein and R. H. Ward for the purpose of defrauding the creditors of said Ward, and the evidence being sufficient to support such findings, it was proper to render judgment refusing to recognize and foreclose the lien established by said judgment against the owners of the property not guilty of the fraud, and the fact that the judgment revived the money judgment against R. H. Ward, who was a party to the fraud, does not affect the portion of the judgment refusing to establish a lien on the land.

• The fifth assignment of error is as follows:

“The court erred in admitting and receiving evidence over the objection of defendant Chas. Clarke, administrator, offered by the plaintiff making an attack upon the title of the defendant Chas. Clarke, administrator, based upon the judgment No. 2987, in the case of Gif-ford v. Ward et al., rendered in the district court of Wharton county, Tex., and assigned to the estate of Chas. Clarke, deceased; such judgment being a foreclosure of the first mortgage or deed of trust lien on the property described in plaintiff’s petition, such evidence so admitted over the objection of the defendant being in substance as follows.”

Here follows a descriptive list of various instruments and records and the names of a number of witnesses who testified in the case.

The assignment cannot be considered. It is not followed by a proposition as required by the rules, and under no possible construction of its language can it be regarded as being in itself a proposition of law. If, however, the assignment could be considered, it should not be sustained. From the statement following the assignment, it appears that the objection made by appellant to the evidence was that it was not competent for plaintiff in this suit to show the invalidity of the judgment of the district court of Wharton county. As we have before shown, plaintiff is not seeking in this suit to set aside that judgment, in so far as it affects the parties thereto, but contends that because of the facts that the debt for which the mortgage lien which was foreclosed in said suit was given was paid before the judgment of foreclosure was rendered, and said judgment was obtained by the fraud and collusion of the plaintiff in said suit and the defendant R. H. Ward, with intent to defraud the creditors of said Ward, such judgment did not affect the right of plaintiff, who was a junior lien-holder and creditor of said Ward, and was not a party to said suit. ,We think this contention is sound, and therefore the trial court properly permitted plaintiff to prove the facts on which it is based.

Plaintiff held a valid lien upon the land which, after the payment of the debt for which the lien foreclosed in the Wharton county judgment was given, became a first lien upon the property. After the payment of such debt, it was not competent for .the district court of Wharton county in a suit in which plaintiff was not a party to establish and foreclose, as against plaintiff, the lien given to secure said debt, thereby mating said lien superior to that of plaintiff’s. As to plaihtiff, such judgment was void, and the general rule which forbids a collateral attach upon the judgment of a court of competent jurisdiction has no application. Green v. Robertson, 30 Tex. Civ. App. 236, 70 S. W. 345; McCoy v. Crawford, 9 Tex. 357; Trust Co. v. Hartley, 20 Tex. Civ. App. 180, 49 S. W. 902; Masterson v. Little, 75 Tex. 682, 13 S. W. 154; Railway Co. v. Johnson, 76 Tex. 421, 13 S. W. 463, 18 Am. St. Rep. 60.

It is also the law that a decree obtained to delay, hinder, or defraud creditors is void as to creditors, and subject to collateral attach. Article 3966, R. S. 1911; Rutherford v. Carr, 99 Tex. 101, 87 S. W. 815.

The sixth, seventh, and eighth assignments seeh to present in another form the question we have hereinbefore passed upon, and it is unnecessary to discuss said assignments, and each of them is overruled.

The ninth assignment is without merit.

The record fails to show that the trial court sustained the exceptions stated in the assignment. The pleadings present no question of limitation against plaintiff’s right to show that the judgment under which appellant claims a lien upon the land was fraudulent and void. .

It follows from the conclusions before expressed that, the judgment of the court below should' be affirmed, .and it has been so ordered.

Affirmed.