Full opinion text
NEILL, J. This suit was brought by Felix Trevino and a number of other parties against I. B. Henyan, individually, and as independent executor of the will of Natividad Garza Martinez, and against Margarita Sal-dana Martinez, George Martinez, Francisco Saldana, Matea Martinez, and Susana Sal-dana in trespass to try title to recover certain real property described in plaintiffs’ petition and for a partition of the same. Plaintiffs alleged in their third amended original petition, on which the case was tried, substantially: That on June 4, 1904, and long prior thereto, they and those under whom they claim were in actual possession of and claiming title to a large and valuable tract of land holding possession of different parts thereof, but together occupying and claiming in severalty title to the whole thereof, which tract is described as follows: Lying and being situated within the corporate limits of the city of San Antonio, Bexar county, Tex., being original city lots Nos. 5, 6, and 7, in range 1, district 3, and bounded | on the south by Crockett place, on the west by McCullough place, on the north by an alley, and on the east by Rock Quarry Road. That the plaintiff Fabiana Sorola de Gonzales was then occupying the following part of the said tract, viz.: All that portion of a subdivision of said tract made by I. B. Hen-yan, and said portion so occupied and claimed by said Fabiana Sorola herein described by metes and bounds as follows: “Beginning at the southeast corner of lot No. 8 in new city block 2,964, on the north side of Crockett place; thence north along the dividing line between lots 8 and 9, 75 feet; thence in a northwesterly direction on a straight line to a point on the north line of lot No. 20 of same block midway between its northwest corner and its northeast corner; thence in a southwesterly direction in a straight line to a point on the west line of lot No. 20, 50 feet from its northwest corner, the same being on the east line of what is now known as Gillespie street; thence south along the east line of Gillespie street to the southwest corner of said block 2,964; thence east along the north line of Crockett place to place of beginning.” Then follows a description of the different parts of the tract of land first described, occupied and claimed by each of the several plaintiffs on January 4, 1904. Said petition also alleges: That the defendant Margarita Saldana Martinez was then occupying and claiming title to all that part of said subdivision made by the said Henyan, more particularly described as follows: “Beginning at the northeast corner of new c-ity block 2,964; thence in a northeasterly direction along the west line of Jones avenue to a point 35 feet from northeast corner of lot No. 6 in new city block 2,998; thence west on a straight line parallel with south line of' the alley dividing said new city block 2,998 to a point on the north line of lot No. 2 in said new city block midway between its east and west lines; thence in a straight line in a southwesterly-direction to a point on the south line of Washington place and the north line of lot 20 in new city block 2,964 midway between the northeast and northwest corners of said lot; thence on a straight line in a southeasterly direction to a point in lot 9 of new city block 2,964, 20 feet from its west line and 75 feet from its south line; thence on a straight line in a northeasterly direction to the place of beginning.” That T. W. Campbell, receiver of the estate of Arthur P. McNutt, deceased, was also claiming title and possession of the land first described, and that a controversy arose between pláintiffs and the said Campbell, as such receiver, as to who was the rightful owner and entitled to the possession of said land, and suits were instituted by the receiver against Fabiana Sorola, Refugio Lopez, Severo Lopez, now deceased, Petra Aram-bula, and Víctor Quintero for the title and possession of said land in the Forty-Fifth district court of Bexar county, Tex. And that said suits were afterwards consolidated and known as consolidated cause No. 14,662 and styled “T. W. Campbell, Receiver, v. I. B. Henyan, Independent Executor of the Estate of Natividad Garza Martinez, et al.” And that said receiver was threatening suit against the rest of plaintiffs herein to recover title and possession of said property, hut that no suits were actually filed against any of plaintiffs save those above named. That prior to and on June 7, 1904, defendant Henyan was a regular practicing attorney in Bexar county, Tex., and has ever since been such. That plaintiffs, and each of them, reposing confidence in the ability and integrity of said defendant, some time prior to said date, employed him to represent them as their attorney in the controversy that had arisen between them and T. W. Campbell as such receiver regarding the title and possession of said property, and to appear in court and represent all and each of them in all suits filed against them by said receiver, and to protect their interest in said property. That Henyan accepted said employment and undertook to represent plaintiffs and each of them in said matters. And that, in pursuance of such employment, he appeared and filed answers for all of plaintiffs who had been sued in all suits that were filed against them by said receiver concerning said property, and especially in said consolidated cause. That plaintiffs and each of them reposed free and full confidence and faith in I. B. Henyan, believing that he would represent their interest in good faith and with reasonable diligence and would protect them in all their rights. ■ But that he formed a fraudulent design to cheat and defraud all and each of plaintiffs out of their interests in said lands, and that he entered into a conspiracy with the defendants Margarita Saldana Martinez, George Martinez, Francisco Martinez, Matea Martinez, and Susana Saldana for that purpose, and that Henyan and the other defendants confederated together in the matters afterwards alleged in the petition for the purpose of defrauding and cheating plaintiffs out of their interest in said land. But, if plaintiffs are mistaken in the allegations as to such a conspiracy with all the defendants, then they alleged that I. B. Henyan conspired with the said Margarita Saldana Martinez, George Martinez, and Francisco Martinez for the purpose of cheating and defrauding plaintiffs and each of them out of their interests in said land. That, in pursuance of said conspiracy and fraudulent design, Henyan represented to and advised plaintiffs, who had employed him to enter into a compromise and settlement of the controversy existing between said receiver and plaintiffs regarding the title to and possession of said land, that the question involved in the controversy was doubtful, and there was a possibility of plaintiffs losing the land entirely, unless they entered into a compromise and settlement of the same, and advised plaintiffs who had employed him that it would be to their best interest to settle the matter by a compromise with the receiver, and represented to them that said receiver was willing that all those occupying the land should have a part of the same, which is afterwards described in the petition, and that he (the receiver) would take the other half; and that, if plaintiffs would move off that part proposed to be assigned and taken by the receiver, he would turn over the remainder of the land to plaintiffs to be parceled among them in proportion to their respective interests as occupied and claimed by them in the entire tract. That he, the said Henyan, further represented to and advised plaintiffs who had employed him as their attorney that it would be necessary for all occupying said land to move from all that portion of the tract south of San Pedro place so that it could be cleared and divided among them in such proportion that each would receive his share in accordance with the proposed compromise. That plaintiffs, believing and relying upon said representations of Henyan, were induced thereby to agree upon and enter into such compromise; and that, reposing full faith and confidence in Henyan, believing he would discharge his duty to them and protect their interest in the land, authorized him to make and enter into for them such compromise and agreement. That Henyan then represented to them it would be to their best interest that the title to all the land they were occupying, which they would secure by such compromise, should be placed in the defendant Margarita Saldana Martinez alone in order that it could be properly distributed among all so that each should receive his proper share; and that plaintiffs, relying upon and believing said representations of Henyan, were induced thereby to agree that the title should be placed in said Margarita Saldana Martinez alone; and each of plaintiffs, under the advice of Henyan, agreed that he would move off of all that part of the land north of San Fedro place until the portion assigned them below San Pedro place could be divided so each one might receive his respective share. That thereafter, on June 3, 1904, for the purpose of effecting such compromise, the following agreement in writing was entered into: “No. 14,662. T. W. Campbell, Receiver of Estate of Arthur P. McNutt, Deceased, v. I. B. Henyan, Independent Executor of the Estate of Natividad Garza Martinez, Deceased, et al. In District Court, Forty-Fifth Judicial District, Bexar County, Texas. This memorandum of an agreement between T. W. Campbell, receiver of tbe estate of Arthur P. McNutt, deceased, plaintiff, and I. B. Hen-yan, independent executor of tbe estate of Natividad Garza Martinez, deceased, Fabi-ano Sorola, Guadalupe Martinez, Francisco Saldana, and bis wife, Susana Saldana, Refugio Lopez, and bis wife, ■ Oandalaria Martinez Lopez, Severo Lopez, and bis wife, Leanora Lopez, Petra Arambula, Victor Quintero, and bis wife, Lena Arambula Quin-tero, Margarita Saldana Martinez, George Martinez, Paulina Martinez, Ignacio Martinez, and Matea Martinez, witnessetb: (1) That tbe defendant Margarita Saldana Martinez will file a disclaimer in tbis cause as to any right, title, or interest in and to original city lots five (5), six (6), and seven (7), range one (1), district three (3) in the city of San Antonio, Bexar county, Texas, and involved in this suit, except as to that portion which is hereinafter allotted to her; and that as that portion the defendant Margarita Saldana Martinez has at all times since 1866 had peaceable and adverse possession thereof, inclosing, cultivating, using and enjoying the same with her family as her homestead. (2) That each and all of the balance of said defendants will file a disclaimer in this cause to any right, title, or interest in and to original city lots five (5), six (6), and seven (7), range one (1), district three (3), in the city of San Antonio, Bexar county, Texas, involved in this suit. (3) That T. W. Campbell, receiver of the estate of Arthur P. McNutt, deceased, shall have judgment against all of said defendants for the possession of and title to the following described portion of said original city lot, to wit: Beginning at the intersection of the Crockett place (and Gillespie street on the northeast side of Crockett place) and running thence north with the east line of Gillespie street to its intersection with an alley on the north of original city lot number seven (7); thence west with the north line of original city lot number seven (7) to its intersection with McCullough avenue; thence south with the east line of McCullough avenue to the southeast corner of original city lot number five (5); thence east with the north line of Crockett place to the place of beginning as per streets and alleys of the subdivision of said property made by William M. Locke, engineer, in March, 1903, for T. W. Campbell, receiver, and by him dedicated to the public, and a copy of said plat is hereto attached. (4) That said defendant Margarita Saldana Martinez shall have judgment against T. W. Campbell as receiver of the estate of Arthur P. McNutt, deceased, and her codefendants, for the possession of and the title to the following portions of original city lots five (5), six (6), and seven (7), in range one (1), district three (3), in San Antonio, Bexar county, Texas, to wit: Beginning at the intersection of the north line of Crockett place with the Rock Quarry Road at the southeast corner of original city lot number five (5); thence .west with the north line of Crockett place to its intersection with Gillespie street as platted by said receiver in his subdivision of the original city lots number, five (5), six (6), and seven (7), range one (1), district three (3);. thence north on the east, line of Gillespie street to its intersection with an alley on the north line of original city lot number seven (7); thence east on the south line of said alley to its intersection with the Rock Quarry Road, being the northeast corner of original city lot seven (7) ?. thence south with the west line of the Rock. Quarry Road and the east line of original city lots five (5), six (6), and seven (7) to the place of beginning, excepting . San Pedro Place street running from east to west between original city lots six (6) and seven (7) as per streets and alleys of the subdivision' of said property made by William M. Locke, engineer, in March, 1903, for T. W. Campbell, receiver, except that the subdivision of streets and alleys in the blocks numbered three (3), four (4), and seven (7) shall not be accepted or adopted by the defendant Margarita Saldana Martinez; and as to said blocks the subdivision and the pdats shall not be binding on her; otherwise she adopts said subdivision and plat. (5) That T. W. Campbell, as receiver of tbe estate of Arthur P. McNutt, deceased, will pay all the costs incurred in this consolidated suit. (6) That each and all of said defendants will within thirty (30) days from this date move off of the property above awarded to T. W. Campbell, as receiver, and taking with them all their improvements, except growing crops and fences and these will be removed within sixty (60) days from this date, and they will not locate upon any portion of said original city lots other than that part of original city lot seven (7) lying north of San Pedro and east of Gillespie street. Witness our hands this the 3d day of June, A. D. 1904.” This instrument is signed by Margarita Saldana Martinez, Petra Arambula, George Martinez, Oandalaria Lopez, Leanora Lopez, Guadalupe Martinez, Mateo Martinez, Francisco Saldana, Lena Quintero, Refugio Lopez, Severo Lopez, Matea Martinez, Ignacio Martinez, Paula Martinez, Susana Saldana, Victor Quintero, and I. B. Henyan, as independent executor of Natividad G. Martinez, deceased, and is witnessed by I. B. Henyan and W. E. Cox. The petition then avers: That, though all of plaintiffs did not sign said agreement, nor assent thereto before or at the time it was signed, yet. it was represented to them by Henyan that it was made for the benefit of them all, and that each of the plaintiffs was to get his share of the land which was by its terms to be set aside to Margarita Sal-dana Martinez, and that each, relying upon and believing such representations of Hen'-yan, either signed or assented to the same, either before or after it was signed. That on June 7, 1904, the said Campbell, as receiver of said estate, and said Henyan caused a judgment to be rendered in said court in accordance "with said agreement in said consolidated cause 'awarding the following described property to the said Margarita Saldana Martinez, to wit: Portion of original lots Nos. 5, 6, and 7, range 1, district 3, in San Antonio, Bexar county Tex., specifically described as follows: “Beginning at the intersection of the north line of Crockett place with Rock Quarry Road at the southeast corner of original city lot No. 5; thence west with the north line of Crockett place to its intersection with Gillespie street as platted by said receiver in his subdivision of original city lots numbers five (5), six (6), and seven (7), range one (1), district three (3); thence north on the east line of Gillespie street to its intersection with an alley on the north of original city lot number seven (7); thence east on the south line of said alley to its intersection with the Rock Quarry Road, being the northeast corner of original city lot seven (7); thence south with the west line of the Rock Quarry Road and the east line of original city lots five (5), Six (6), and seven (7) to the place of beginning, excepting San Pedro Place street running from east to west between original city lots six (6) and seven (7) as per streets and alleys of the subdivision of said property made by William Locke, engineer, in March, 1903, for T. W. Campbell, receiver, except that the subdivision of streets and alleys in the blocks numbered three (3), four (4), and seven (7) shall not be accepted or adopted by the defendant Margarita Saldana Martinez; and as to said blocks the subdivision and plats shall not be binding on her; otherwise she adopts said subdivision and plat.” It is then alleged: That, while by the terms of said judgment Margarita Saldana Martinez recovered the title and possession of the land just described as against the receiver and her eodefendants in said suit, yet I. B. Henyan, who was the attorney of all the defendants in the case wherein the judgment was rendered, represented to these plaintiffs that said agreement was for the benefit of such as were parties to said suit as well as those who were not parties, to said consolidated cause, and had before said compromise settlement been entered into, advised, and counseled plaintiffs, and each of them, that it would be to their best interest to have the legal title to said land put in the name of Margarita Saldana Martinez, in order that the land could afterwards be divided up among the plaintiffs herein and himself so that each one could get his proper allotment ; and that plaintiffs, having implicit confidence in Henyan, and believing that he would not wrong them, assented to said agreement, never for a moment suspecting that he or any other of the defendants would claim that plaintiffs had no interest in said land so set apart to Margarita Saldana Martinez until a short time before filing this suit. That plaintiffs, who signed said agreement, being ignorant of the English language, signed the same without knowing its legal effect, nor the advantage that might be taken of them through the same to defraud them of their rights in said property; but believed, such belief being induced by the representations, of Henyan, that the agreement would effect the compromise and settlement which had been agreed upon, and that each would get his share of the land and have the same set apart to him thereunder. That while some of plaintiffs did not sign the agreement, they assented to the same; that is to say, they assented to the compromise which Henyan represented to them had been made for their benefit and that they were to get the benefit of. That thereafter the receiver, T. W. Campbell, and I. B. Henyan, for the purpose of consummating the compromise settlement and terminating said litigation, caused to be entered in said consolidated cause, on June 7, 1904, a decree awarding the. property hereinafter described to Margarita Saldana Martinez and the remainder of said land to said receiver, which decree is recorded in the minutes of the Forty-Fifth district court of Bexar county. That plaintiffs, in pursuance of said agreement and compromise, all moved off of the land which was awarded to Campbell, receiver, and all that portion south of San Pedro place, which they supposed had been awarded them under said compromise, for the purpose of allowing said portion to be divided so each of them would get his proper share. That, in pursuance of said fraudulent design and conspiracy, I. B. Henyan, on June 8, 1904, caused to be executed and delivered to him by the said Margarita Saldana Martinez a deed purporting to convey him all the property hereinafter described, which deed is recorded in record of deeds of Bexar county. That plaintiffs were wholly ignorant of the execution of said deed until a short time prior to the institution of this suit and never suspected that Henyan, nor any other defendant, was trying to defraud and cheat them out of their interest until about a month before this suit was filed. That Hen-yan represented to plaintiffs and each of them that he would be in a situation to have said land divided among them so that each would get his share, and thereby lulled them into refraining from action to protect themselves against his fraudulent conduct; he representing all the time to them that he would carry out the statements and representations to them in good faith. • That plaintiffs and each of them employed Henyan to represent them in said litigation; it being agreed between them that he should have one-half the land he should succeed in having set apart to them in such litigation, and he agreeing that he should represent them until all matters connected therewith were fully settled and each one’s share of land was allotted to him. That Felix Trevino, Manuel Lopez, S. Lopez, Francisco Esparaz, Guadalupe Ortiz, Fabiana Sorola, Refugia Fonseca, Refugio Lopez, Petra Arambula, Lena Arambula Quintero, Victor Quintero, with other parties, were sued in the Thirty-Seventh district court of Bexar county, Tex., in cause No. 15,394, styled “City of San Antonio v. I. B. Henyan, Independent Executor of Estate of Natividad G. Martinez, Deceased,” in which the city of San Antonio recovered a judgment against the plaintiffs above named for the sum of $- for taxes due on said property hereinbefore described, and for all costs incurred. That Henyan, in discharge of his duties as attorney for said plaintiffs, appeared and represented them in said case; •they being defendants therein. That said judgment was rendered in favor of the city in said cause on January 5, 1906. That on February 21, 1906, an order of sale was issued on said judgment and placed in the hands of the sheriff, who lived upon said land and sold the same thereunder on April 3, 1906, at which sale it was bid in by I. B. Henyan for $73.50, and a deed was made to him by the sheriff thereto. That the land so sold and bought in by Henyan was then of the reasonable value of $20,000. That plaintiffs had no notice or knowledge that he had bought the land at such sale for himself until a short time prior to the date of filing this suit. That at the time of entering into said compromise agreement with said receiver, of entering the decree in the consolidated' cause, of the execution and delivery of the deed by Margarita Saldana Martinez to defendant Henyan, and of I-Ienyan’s purchase of the land at sheriff’s sale, Hen-yan was acting as the attorney for each and all of plaintiffs. Wherefore plaintiffs aver that it should be held that defendant Hen-yan accepted said conveyances for their benefit as well as for himself, and that he has ever since held said property in trust for them as well as for his own benefit, and that plaintiffs are the rightful owners of one-half thereof, and that it ought to be held that said property was awarded to Margarita Sal-dana Martinez in said decree and conveyed by her to defendant Henyan for the purpose of being partitioned among them, the said Martinez and Henyan, according to their respective interests therein, the respective interests of plaintiffs in the property so recovered being undetermined at the time, but it was agreed and understood that their respective interests were to be in proportion to the respective portions of the entire tract occupied by them as before alleged. That some time, on or about August 10, 1908, Henyan began openly claiming title individually to said property, and resubdivided blocks Nos. 2,964, 2,997, and 2,998 and caused a plat of the resubdivision to be filed and placed of record in the office of the county clerk of Bexar county, on December 17, 1908; and that on November 20, 1908, and at divers dates thereafter, he sold and conveyed to N. A. Dawson, in such resubdivi-sions, the following lots, Nos. 5, 7, 8, 9, 15, 16, and 17, new city block 2,998, executing and delivering said Dawson a general warranty deed to said property, which has been filed and recorded in the deed records of said county, and the grantee is now claiming said lots as an innocent purchaser for value. That, if plaintiffs are mistaken in their allegations that Henyan was employed by and represented each and all of the plaintiffs in the foregoing matters, and that he made td each and all of them the representations before alleged and so counseled them, then plaintiffs Sorola de Gonzales, joined by her husband, Daniel Gonzales, Refugio Lopez, Leanora Lopez, in her individual capacity and as next friend of the minors Fortun-ata, Francisco, Juana, Catarino, Severo, and Evangelina Lopez, children of herself and Severo Lopez, deceased, Rafael Olivo, Luz Perez, Petra Arambula,. and Lena Quintero, joined by her husband, Y. Quintero, affirm all the foregoing alleged facts as applied to them and Severo Lopez, deceased, and refer to and adopt all the foregoing allegations as restricted to them and the said Severo Lopez, deceased, and each of them, without repeating such allegations. The petition closes with this prayer: “Wherefore plaintiffs pray, the defendants having already been cited and having answered herein, that, upon final hearing hereof, the decree entered in the consolidated cause -No. 14,662, entitled ‘T. W. Campbell, Receiver of the Estate of Arthur P. McNutt, Deceased, v. I. B. Henyan, Independent Executor of the Will of Natividad G. Martinez et al.,’ in the district court of Bexar county for the Forty-Fifth judicial district of Texas and entered in volume 11, at pages 572 to 578 of the minutes of said court in which the property hereinbefore described was awarded to Margarita Saldana Martinez and the deed from the said Margarita Sal-dana Martinez to the defendant I. B. Hen-yan, dated June 8, 1904, and recorded in volume 224 at page 166 of the deed records of Bexar county, Tex., and the sheriff’s deed to the defendant I. B. Henyan, dated April 4, 1906, and recorded in volume 296 at pages 369 to 371 of the records of deeds of Bexar county, be declared conveyances in trust, and that the said defendant I. B. Henyan be declared to be a trustee as to said land for plaintiffs and himself, and that plaintiffs have judgment divesting out of the said Hen-yan all right, title, and interest in all of an undivided one-half interest in said land except one-half of such share as would have equitably belonged to the said Margarita Sal-dana Martinez and vesting the same in plaintiffs, for a partition between them and the said Henyan, and that plaintiffs have their writ of possession. Plaintiffs further pray that the lots conveyed to N. A. Dawson by the said Henyan be charged to the said Henyan in the partition between them and the said Henyan; and they further pray for such other general and special relief as they may be entitled to under the facts herein-before alleged, and for their costs. If plaintiffs should prove mistaken in their allegation that the defendant I. B. Henyan was employed by and represented each and all of the plaintiffs, and if it should be found on the trial that all of the plaintiffs are not entitled to relief, but that some of them are, then each plaintiff herein that may be found to be entitled to relief prays that he be given such general and special relief as such plaintiff may be entitled to under the facts hereinbefore stated, and each plaintiff hereby adopts each and all of the foregoing allegations of fact as if made by such plaintiff alone without repeating said allegations to avoid prolixity.” By his first amended original answer the defendant Henyan interposed a general demurrer, a special demurrer upon the ground that said petition does not set out the interest claimed in the premises sued for by all of the plaintiffs, a plea of not guilty, a general denial, the three, four, and five years statute of limitations, and' improvements in good faith. His amended answer also contains special pleas, which are, substantially, as follows: That prior to the - day of -, 1881, original city lots 5, 6, and 7, in range 1, district 8, in the city of San Antonio, of which the property in controversy formed a part, belonged to one John McNutt in fee simple. That during the year 1881 McNutt died testate devising said property to A. P. McNutt, who at the time was insane, and that no statute of limitation ran against him in favor of any one in actual possession of any portion of said premises, unless such possession began anterior to the death of his testator. That on May 11, 1896 (A. P. Mc-Nutt having died on December 5, 1895), a large number of the heirs of said McNutt filed a proceeding in the district court in and for the Eorty-Pifth judicial district, Be±ar county, Tex., praying for a partition among themselves of the estate of said A. P. Mc-Nutt. That, in order to effect the purpose of said suit, a receiver was appointed on January 29, 1903, by an order duly entered in said cause; T. W. Oampbell being the receiver so appointed. That, during the pend-ency of the receivership, the receiver caused said lots to be subdivided into city lots, blocks, streets, and alleys and a plat thereof made by William Locke. That by said subdivision part of the land lies east of Gillespie street and a portion of the same west of said street. That Gillespie street as so extended is practically identical with what is known as the “Old Tobin Road,” which ran through said original city lots before mentioned, thus locating a portion of the same east of the Old Tobin Road and a portion west of the same. That, some time during the spring of 1903, this defendant was consulted by said Margarita Saldana Martinez with reference to defending her title to that portion of said premises lying east of the Tobin Road, and represented to him that she had been in possession of the same for such length of time as would give her title thereto as against A. P. McNutt and all his heirs. That defendant had informed himself of about the date of the death of John Mc-Nutt, and also at that time had knowledge of A. P. McNutt being insane, and that the statute of limitations would not run against him unless her possession antedated his ■ acquisition of title to this property. That he made careful investigation with reference to the possession of the said Margarita Saldana Martinez, and came to the conclusion that her possession had begun prior to the time of John McNutt’s death, and that therefore the statute of limitation began to run before A. P. McNutt acquired title to the property, and that she had title by limitation to the premises situated east of the Old Tobin Road, and accepted employment as her attorney to assert and defend her title; she agreeing as compensation therefor to convey him one-half of all said property. That thereupon defendant, on May 8, 1903, in pursuance of such employment, brought suit for said Margarita Saldana Martinez in the district court of said judicial' district, against said receiver, for the purpose of recovering said premises and adjudging the title thereto in her. That, shortly after he was so' consulted by her, he was further consulted by Natividad Garza Martinez, who was in possession of and asserted title to the portion of said original city lot, lying east of the Old Tobin Road, and that upon investigating her claim thereto he concluded that she had gone into possession of said premises anterior to the death of John McNutt, and therefore the statute of limitation had commenced to run in her favor prior to acquisition of title by A. P. McNutt, and that her possession had been such as conferred title to said portion of the premises, and he was thereupon employed by her for the purpose of establishing and protecting her title and interest in the same, and as compensation for his services she agreed to convey him one-half of said portion of the land. That he thereupon filed suit for said Natividad Garza Martinez in the district court of the Fifty-Seventh judicial district on May 8, 1903, against said Campbell, receiver, for the purpose of recovering said portion of the premises .and establishing and adjudicating her title thereto. That, during the pendency of said suit, she died testate, devising said portion of the premises to Petra Arambula; the will naming him (Henyan) as independent executor. That he caused her will to be probated and qualified as independent executor thereunder and, as such executor, made himself a party to said suit. That thereafter T. W. Campbell, receiver, as such, brought- suit in the district court of Bexar county in the Fifty-Fifth Judicial district, against Francisco Saldana in trespass to try title to recover lot 1, block 4, of a subdivision of said original city lots 5, 6, and 7, which lot sued for was located east of the Old Tobin Road, now Gillespie street. That said Francisco Saldana was neither claiming nor asserting any interest in said lot, but was merely occupying the same as a tenant of his mother, Margarita Saldana Martinez, and in subordination to her title, and that in order to protect her title,- with the eonsent of said Francisco Sal-dana, defendant appeared and represented him as his attorney for said purpose. That thereafter the said receiver brought suit in said district court in trespass to try' title against Fabiana Sorola, now Fabiana Gonzales, to recover lot 1, block 3, of said subdivision. of original city lots 5, 6, and 7, and that Sorola had no interest in the same at that time nor at any time thereafter, so far as defendant is informed, nor claimed any title thereto as against Margarita Salda-na Martinez,, but occupied the same or a portion thereof as her tenant and in subordination to her title. That, in order to protect the interest of Margarita Saldana Martinez, defendant appeared as attorney for Sorola in said litigation and filed answer. That Sorola had no title to said lot,, either as against the heirs of A. P. McNutt or Margarita Saldana Martinez, and was not asserting or claiming any title in the same, and that defendant made such ■ appearance for her for said purpose with her knowledge and consent. That said lot No. 1 is a portion of the subdivision of original city lot lying east of the Old Tobin Road, now Gillespie street. That thereafter the said T. W. Campbell, receiver, as such, brought suit in said district court in trespass to try title against Alberto Garza to recover lot 7 out of block 7 of the subdivision of original city lots 5, 6, and 7, which lot is situated in a portion of said subdivision lying east of Old Tobin Road, now Gillespie street. That Alberto Garza sought to emiDloy this defendant, who, after investigating his title, in good faith came to the conclusion that Alberto Garza had no title to said lot, either as against the heirs of A. P. McNutt or Margarita Saldana Martinez, and therefore declined to act and answer for him in said suit, and never at any time represented him in said suit or in any of the proceedings referred to, and that Alberto Garza, having no title to said lot, attorned to said Campbell and acknowledged his title as receiver of said estate. That thereafter the said T. W. Campbell, as receiver, brought suit in said district court, in trespass to try title against Severo Lopez to recover lots 6 and 7 out of block 4 of said subdivision of. said original city lots 5, 6, and 7, which were situated east of the Old Tobin Road, now Gillespie street. That Severo Lopez neither had nor asserted title to said lots as against either Margarita Saldana Martinez or the heirs of A. P. Mc-Nutt, but was in possession of a portion of said lots as a tenant of said Margarita, holding the same in subordination to her title. That, in order to protect her title, defendant, with the consent of Lopez, appeared and filed an answer as his attorney in said suit for said purpose. That thereafter the said T. W. Campbell, as such receiver, brought suit in said district court in trespass to try title against Refugio Lopez to recover lot 2 out of block 4 of said subdivision of said original city lots 5, 6, and 7, which said lot lies east of the Old Tobin Road, now Gillespie street. That the said Lopez was a son-in-law of Margarita Sal-dana Martinez, and had no title to said lot as against either the heirs of A. P. McNutt or said Margarita, but was in possession of the same as her tenant, holding it in subordination to her title. That in order to protect the interest of Margarita, and with the knowledge and consent of Refugio Lopez, defendant appeared and filed an answer for said Lopez in said suit for said purpose-That thereafter Campbell, as such receiver, brought suit in said district court, in trespass to try title against Guadalupe Martinez to recover lots 8 and 9 of block 3 of a subdivision of said original city lots 5, <5, and 7, which two lots are situated east of the Old Tobin Road, now Gillespie street. That Guadalupe Martinez was a son-in-law of said Margarita Saldana Martinez and had no title to said lots 8 and 9-, nor did he assert any title thereto as against the heirs of A. P. McNutt or Margarita Saldana Martinez. That, in order to protect Margarita’s interest, defendant, with the knowledge and consent of said Guadalupe Martinez, appeared and filed answer for him in said suit for such purpose. That thereafter said Campbell, as such receiver, brought suit against Margarita Sal-dana Martinez in said district court, in trespass to try title to recover lots 1 to 7 in block 4 of said subdivisions of said original city lots 5, 6, and 7, which lots 1 to 7 were-situated east of the Old Tobin Road, now Gillespie street. That defendant, as attorney for said Margarita, appeared and made1 answer in said suit. That thereafter Campbell, as such receiver, brought suit against Natividad Garza Martinez in said district-court, in trespass to try title to recover the-following portion of the subdivision of said original city lots S, 6, and 7, viz.: Beginning at the southeast corner of lot 6 in block 5; running thence east across Paschal street and along the south line of lot 1 in block 6, a distance of 25 feet; thence south across: Washington place to the north line of lot 7 in block 2; thence west across Paschal' street to the northeast comer of lot 12 in block 1; thence north across Washington place to the southeast corner of lot 6 in block 5, the place of beginning. That the property so described lies west of Old Tobin Road, now Gillespie street, and does not include any portions of lots or blocks in said subdivision, but includes only a portion of Paschal street and Washington place as laid out in said subdivision. That defendant Henyan appeared and filed answer in said suit for Natividad Garza Martinez. That during the pendency of said suit the said Natividad died testate, as hereinbefore averred, having devised all her property to said Petra Arambula, her niece; and that, by amended petition, said receiver made defendant Henyan, as executor of decedent’s will, defendant to said suit, and also Petra Aram-bula, Lena A. Quintero, and her husband, Victor Quintero, parties defendant thereto. That the said Petra Arambula had no title or interest in the property sued for as against Natividad Garza Martinez or the heirs of A. P. McNutt, deceased, except such as she acquired under said will, and asserted no title to either the property involved in said suit or the property involved in the suit by Natividad G. Martinez against said T. W. Campbell, receiver, hereinbefore referred to, except such as she acquired under said will. That the said Lena A. Quintero was a niece of said Natividad Garza Martinez and was living with her upon the property involved in the suit of Campbell, receiver, against the said Natividad Martinez above referred to, and holding such possession in subordination to the former’s title, having no title nor asserting any as against Natividad Garza Martinez or the heirs of A. P. McNutt, deceased; and that Victor Quintero was merely a formal party and had no interest in and was asserting no title to the property. That, when the above-named persons were made parties defendant, defendant, having appeared and answered for himself as executor of the estate of Natividad Garza Martinez, with the knowledge and consent of the other named defendants, filed formal answers for them in order more fully to protect the title of the estate of said Natividad Garza Martinez to said premises; said answers being filed for such purpose. And that defendant, on the death of Natividad Garza Martinez and probating of her will, filed an inventory, in which inventory he set up and described as part of the property of the said estate the part of the original city lots 5, 6, and 7 lying west of the Old To-bin Road, now Gillespie street. That thereafter, in the said suit of Natividad Garza Martinez v. T. W. Campbell, receiver, it being discovered that Refugio. Fonseca, Felix Trevino, and Guadalupe Ortiz were in possession of a portion of the land sued for in said suit lying west of the Old Tobin Road, now Gillespie street, who were made parties defendant to said suit by the plaintiff therein and appeared and made answer thereon, being represented by'the attorney of T. W. Campbell, receiver, for said parties had at-torned to the receiver and were his tenants and were not asserting title to said premises as against the heirs of said A. P. McNutt, and the only title that they were asserting against Natividad Garza Martinez was such as they held as tenants of T. W. Campbell, receiver, being the title of the heirs of said McNutt. That defendant never at any time represented as attorney any of the three last-named defendants in said suit, who are plaintiffs in this action. That in the meantime; the following named parties had recognized! the title of the heirs of A. P. McNutt, deceased, in and to original city lots 5, 6, and.. 7, and had in fact attorned to said receiver and were asserting no title to any of said, premises in themselves; the only title had or-held by any of them being that of tenants-of said receiver, and it being in fact the-title-of the heirs of said McNutt, deceased, viz.:: Rafael Oliva, Manuel Casas de Ortiz ana-husband, Guadalupe, Alberto Garza, Sisto,-Maldanado, Francisco Esparza, and Guadalupe Martinez, who is the father of Pabia Martinez de Villareal, the wife of Catarino Villareal, and is also the father of Ignacio M. and Mateo Martinez, and L. Martinez, her attornment being made by her husband-That defendant Henyan at no time ever represented as attorney any of said named parties in any proceedings before referred to; That matters being in the condition averred,, and, it being recognized by all parties that, the title to lots 5, 6, and 7 lay wholly in the-heirs of A. P. McNutt, deceased, or that the-said Margarita Saldana Martinez held title to the portion of the same lying east of saidc Old Tobin Road, and that all of defendants to said suits brought by Campbell as receiver ■ were merely formal parties defendant, holding in subordination to one or the other of the titles mentioned, the question of compromising the entire litigation came up for consideration between the said Campbell, receiver, and the defendant Henyan, as independent executor of the estate of Natividad' Garza Martinez, and Campbell made said' defendant a proposition to compromise the said litigation by an adjudication of all' the land west of Gillespie street t to the said" Campbell as receiver and the land lying east: of said street to Margarita Saldana Martinez.. That, when this proposition was made, the-said Natividad Garza Martinez had died,, and, her testimony not having been taken, defendant Henyan, as independent executor off her estate, found that there would be great difficulty in her establishing her title, which was purely by limitation, to any of said property, and that there was a strong probability that said estate might not recover anything; in said litigation. That he therefore submitted the said proposition of compromise im-petra Arambula, the sole devisee of Nativi-dad Garza Martinez, and to the various ©tin-er persons who subsequently executed the agreement hereinafter referred to for their determination, and that they agreed to accept said compromise; the said Margarita agreeing, as a consideration to said Petra Arambula for entering into said compromise, that she would convey to said Arambula lots 1 and 2 in block 10 on east side of Gillespie street, and pay her $25 in cash, the said Petra Arambula to immediately remove from the premises on the west side of Gillespie street onto said lots, and she did thereafter make such conveyance and pay said money, the agreement, however, so to do not being a part of the agreement compromise subsequently entered into with said Campbell, receiver, hereinafter more fully explained, but being a private agreement between said Petra Arambula and the said Margarita Sal-dana Martinez. That thereupon a written form of an agreement of compromise was prepared by Campbell, receiver, and delivered to defendant Henyan, which is set out in plaintiffs’ petition, and defendant submitted said agreement to Margarita Saldana Martinez and Petra Arambula and to all parties named therein. That thereupon said agreement was signed by all of said parties, duly acknowledged, returned to defendant (Henyan) for delivery to said receiver. That thereupon said Campbell, a.s receiver of said estate, applied to the court wherein the receivership was pending for authority to enter into said compromise agreement, and such authority was granted him by an order of said court. That, in order to effectuate said agreement, the suits brought by Natividad Garza Martinez against said receiver, to which certain tenants of the said Campbell, as receiver, had subsequently been made parties, was dismissed, and the suit brought by Margarita Saldana Martinez against him was likewise dismissed, and all the remaining suits were consolidated into the suit No. 14,662, entitled “Campbell, Receiver, v. I. B. Henyan, Independent Executor, et al.” That thereupon the disclaimers of the defendants, who by said instrumeht had agreed to disclaim, were filed in the case with said agreement in accordance therewith, and judgment was duly entered in said consolidated suit in accordance with the terms of said agreement. That, after the entry of the agreed decree, Margarita Saldana, in full compliance with her previous verbal agreement, conveyed to said Petra Arambula said lots 1 and 2 in block 10, and said conveyance was accepted by said Petra Arambula, who paid her the $25 in cash in compliance with said verbal agreement. Defendant Henyan specially denies that either he or said Margarita ever had any agreement or understanding that any party should have any interest whatsoever awarded and decreed to said Margarita Saldana Martinez,for their or either of their interest in said land or any part of the same. And he specially avers: That the parties to said agreement were the only parties thereto. That neither he nor she had any agreement or understanding with any person other than who signed said agreement with reference -to the same, or any of its stipulations, or in regard to said adjudication being made on any trust whatsoever for them or either of them. He specially denies that he or she ever made any representations to any such of the parties whatsoever with reference to such agreement or any stipulations therein, or that he or she ever in any way induced any of such other parties to assent to -such agreement in any manner whatsoever, and that in truth and in fact said agreement by its terms represents all the agreements that were ever had with reference to the final adjudication of said case and the decreeing of the land adjudged to said Margarita. That, if any trust agreement was had by Margarita with or for any of the plaintiffs herein, he never had any notice or knowledge of the same, and it was made without his consent. That after said final adjudication, he having an interest in the premises awarded to Margarita, by virtue of his employment by her, she proposed to sell to him the whole of said premises, except thé portion conveyed by her to Petra Arambula and lots 6, 7, and 8, block 10. That he purchased her interest in said property with said exceptions, paying her a valuable consideration therefor; and that, if any agreement had previously been made by Margarita with any one whereby such an one should recover any portion of said property or any interest therein, defendant had no knowledge thereof when he purchased from her. That'during the progress of the litigation before referred to, and prior to its final disposition, the city of San Antonio had brought suit against the said receiver and others for taxes due on said original city lots 5, 6, and 7, and asked judgment for a foreclosure of the tax lien thereon. That Margarita Sal-dana Martinez was not made an original party defendant in said suit; but that defendant, as independent executor of the estate of Natividad Garza Martinez, was made a party defendant, and there were a number of other parties defendant, none of whom had any title whatsoever against either the heirs of McNutt, the said Natividad Garza Martinez, or the said Margarita, nor were asserting title in themselves against either of ■ them, and, if in possession of any part of the premises, they held the same in sub-, ordination to one or the other of the titles aforesaid. That in order to protect the title of Natividad Garza and Margarita Saldana Martinez, and for that imrpose only, defendant may have filed formal answers for some of said formal defendants. That, prior to the final disposition of said tax suit, the said agreed judgment in said consolidated cause was duly entered and made final, and that thereafter the said Margarita made herself a party to said suit claiming the whole of said premises so adjudicated to her in the consolidated suit, the judgment wherein placed complete title in her to the premises as against all of said formal defendants in said tax suit as well as against the heirs of said McNutt and Petra Arambula. That said formal defendants had no title nor interest, nor were they claiming any in said land, and all appearances and answers made by defendant for any of them was done merely for the purpose of protecting the title of the said Margarita Saldana and Natividad Martinez and the devisee of the latter, with the full knowledge and consent of each and all formal defendants. That said tax suit was prosecuted to judgment, it being recited therein that said premises were owned by Margarita Saldana Martinez. That the tax lien was foreclosed as to all the defendants therein, and a decree to that effect entered, which adjudged that the taxes were due by said Margarita Saldana Martinez and a personal judgment entered against her therefor. That thereafter an order of sale issued on said judgment and the property sold thereunder and bought by defendant Kenyan; he having acquired the interest of the said Margarita to the extent hereinbefore averred by purchase from her. That said property was bought in by him for himself, and not in trust for any one else, and he recognized no other title in any one else to any of the property so purchased by him save the title to Petra Arambula to the two lots hereinbe-fore mentioned and the title of said Margarita to the three lots before described, not conveyed by her to him, and that as to said two lots he had been ready and willing at all times, and is still ready and willing, if necessary, to clear their title, to make a quitclaim conveyance to said parties, respectively. That when he purchased said property he was not representing any of the plaintiffs as their attorney, which they well knew. That defendant at no time ever represented as attorney any of the parties plaintiff herein, except as before averred and explained. That, immediately after the entry of the judgment in said consolidated cause, all the defendants in said causes either surrendered possession of any» portion adjudicated to Campbell, receiver, or were ejected therefrom under proper process issued on said judgment, or had previously attorned to said receiver and continued possession under said attornment, or subsequently attorned to said receiver, and have never in any way disputed his title. That they have at all times acquiesced in said judgment and recognized its force and effect. That defendant has placed upon said property valuable improvements, as before stated, amounting in the aggregate to $3,000, and has resubdivided the same and placed it upon the market for sale, and made open and public claim of ownership to said premises, and that plaintiffs are estopped from asserting as against his title any secret trust of any character, and, if not estopped from asserting title, they are from a recovery upon any alleged trust in property in any event until they have fully satisfied and paid the defendant all taxes so paid as well as all money expended by defendant for improvements with interest thereon. That the judgment rendered in said consolidated cause finally adjudicated all matters at issue and fully and finally determined the number of parties thereto who had any interest in or title to any of the property or premises, sáve and except such persons as by said decree adjudged to have title to the portions thereto as herein averred and is res adjudicata to any and all of the claims of any and all persons who were parties to any of said suits so consolidated and to any and all parties who may have been made parties defendant after said suits were consolidated, and defendant pleads said judgment as res adjudicata of any and all of said matters. That the judgment of said tax suit fully and finally adjudicated the right of the city to recover therein the taxes for which it recovered judgment and its right to have the lien therefor foreclosed, and finally adjudged that the property therein involved belonged to said Margarita and was subject to such lien, and that the sale thereunder fully and finally passed the title of all the parties in said suits to him as the purchaser thereunder free and clear of any and all claims had thereto which any of the parties to said proceedings may have had thereto and said sale passed full, complete, and perfect title to this defendant against all the parties thereto. That the tax suit referred to was originally brought against T. W. Campbell, as receiver of the estate of A. P. McNutt, as well as against other defendants, and sought to recover taxes alleged to be due on all of lots 5, 6, and 7. That, during the pendency of said suit, the said Margarita intervened, setting up her separate ownership of the portion of said premises lying east of the Old Tobin Road, now Gillespie street, and in said intervention asked certain affirmative relief against the said Campbell, as receiver; and that he filed his answer to her petition of intervention, disclaiming any right, title, or interest in any of said land lying east of said Old Tobin Road, now Gillespie street. That in the meantime thé said Campbell had paid the taxes due upon the property owned by him as receiver lying west of the Old Tobin Road, and had been dismissed from said suit. That the other defendants named in said suit were Kenyan, as independent executor of the estate of Natividad Garza Martinez, and the following named parties, who hard previously attorned to said Campbell as such receiver, and whatever possession they may have held was as tenants of said Campbell as such receiver, none of them asserting title to any of said property, viz.: Felix Trevino, Sisto Yaldamado, Hejinio Amallo, Manuel Martinez, Gumerindo Hobal-lez or Gumecindo Ovalla, Francisco Esparza, Rafael Ovalla or Habillo, Guadalupe Ortiz, Refugia Fonseca, Guadalupe Martinez, and Alberto Garza, none of wliom were claiming or asserting title to any portion of said original city lots 5, 6, and 7, except in subordination and recognition of the title of either of the heirs of A. P. McNutt, as represented by said receiver, or the said Nativ-idad Garza Martinez, represented by defendant (Henyan) as her independent executor, or of Margarita Saldana Martinez, and the fact that the title to said premises situated east of the Old Tobin Road was in Margarita Sal-dana Martinez was fully and finally adjudicated as against all the parties thereto, and that the parties to said suits other than those before named, as shown by the pleadings therein, were Manuel Lopez, Severo Lopez, Guadalupe Fonseca, Florencia Flores, Fabiana Sorola, Francisco Saldana, Refugio Lopez, Se-card Lopez, Lina Arambula de Quintero, and Victor Quintero ; and that defendant Henyan pleads said judgment as res adjudicata against the plaintiffs herein. That as none of the hereinbefore named defendants had any interest in or title to said1 property, with the exception aforestat-•ed, nor was asserting title thereto, even if -defendant had represented any of them as attorney, any previous or subsequent purchase of the property made from the real owners could not and did not create a trust ,in favor of said parties so purchased by defendant Henyan. But that defendant specially denies that any of plaintiffs herein at •any time ever had or claimed any title in themselves in any portion of said original city lots 5, 6, and 7, and that, if they were in possession of any portion of same at any time, such possession was held in subordination to the title of the heirs of McNutt or to the title of Natividad Garza Martinez or •the title of Margarita Saldana Martinez, as ibefore averred. The defendants other than Henyan answered by a general demurrer, a general denial, not guilty, and in them pleaded the matters alleged in Henyan’s answer, as above ■set forth, virtually adopting his answer. By their first supplemental petition, the plaintiffs interposed a great number of special exceptions, a general denial, and replied to the answer of Henyan by pleading specially, in substance, as follows: That, long prior to the time when Nativi-dad Garza Martinez entered upon any part of the land, Lino Arambula and his wife, the father and mother of plaintiffs Petra Aram-bula and Lina Arambula de Quintero, were occupying and claiming title to all that part of original city lots Nos. 5, 6, and 7 above described lying west of the Old Tobin Road. That is now included within the limits of lots 7 and 8 of new city block 2,985, and lots 7, 8, 9, 10, 11, and 12 of new city block No. 2,999 of Campbell’s subdivision of said original city lots, being about seven acres. That the said Lino Arambula and wife continuously actually occupied said portion of said original city lots, using, cultivating and enjoying the same for the purpose of a home for a period of 10 years before the said Na-tividad Garza Martinez ever entered upon any part of said original lots. That plaintiffs Petra Arambula and Lina Arambula de Quintero were reared on said premises. That, upon their mother’s death, their father procured Natividad Garza Martinez, who was the stepmother of said plaintiffs’ mother, to come and live with his family on said premises and take care of his children. That their father afterwards died, and the said Natividad continued to live there with plaintiffs; and that these facts were well known to defendant I. B. Henyan. That the said Natividad never claimed any part of the land as her own, until after Henyan was employed by a number of th