holding that a cause of action seeking to recover actual stock is equitable in nature and because no other limitations period expressly applied, the residual four-year limitations period applied
How later courts described this case
- holding that a cause of action seeking to recover actual stock is equitable in nature and because no other limitations period expressly applied, the residual four-year limitations period applied
Written by the judges who cited it.
The opinion
ON MOTION FOR REHEARING.
In the motion for rehearing it is stated that Henderson owned one-half ■ of eight notes for $1,148.75 each and that the assigned estate of the Crawfords and the bank owned the other half of said notes which notes held a vendor’s lien on 510 acres of land known *505 as the Preston Steel land. The lien of the eight notes was subordinate to a prior lien which, in the motion, is said to have been large but the amount of it is not named. By the transaction with Lawrence, McCord acquired the half interest in the eight notes which belonged to the assigned estate. McCord and Henderson took a conveyance of the land to themselves in settlement of the eight notes before described subject to the prior lien. Under this state of facts we are of opinion that the adjustment of the equities between the parties is rendered so uncertain that as to that tract of land Labours and others should recover from McCord for the estate the one-half of the amount of the eight notes with interest thereon at the rate expressed in the notes to the time of the trial.
We see no reason to change our conclusions as to other issues in the case. We are not able to see any sound reason why the issue of the good or bad purposes of McCord in securing the' property of the estate which he represented should be excluded from consideration on the issue of liability to account for the property unlawfully acquired by him but should be considered upon the measure of recovery against him. It would be as difficult to ascertain the truth of his real motives and purposes on the latter issue as upon the former.
If we grant that the facts- sustain the appeal of able counsel in behalf of their client this court would have no authority to change the settled rules of law which govern such transactions. The opinion will be modified as stated in the first, paragraph hereof, otherwise -the motion for rehearing will be overruled.
Judgment of Court of Civil Appeals affirmed and case remanded with instructions.