25 S.W.2d 231 | Tex. App. | 1930
This appeal is prosecuted by Mrs. Mollie Garrison, surviving wife of J. C. Garrison, deceased, individually and as executrix of his *232 last will and testament, and by five of the children and heirs at law of said decedent, from a judgment of the district court establishing and foreclosing a judgment lien in favor of the Citizens' National Bank of Hillsboro on 42 acres of land situated in said county. Appellee, on December 17, 1928, holding an unsatisfied judgment against J. P. (Pierce) Garrison, a party defendant in this suit but not a party to this appeal, caused an abstract of such judgment to be duly recorded in the judgment records of Hill county. The regularity of such judgment is not assailed.
The tract of land upon which appellee's judgment lien was foreclosed was the community property of J. C. Garrison, deceased, and his said surviving wife. On November 3, 1914, they, by warranty deed, conveyed said land to J. P. Garrison, the judgment debtor herein for a recited consideration of $2,600 cash and a vendor's lien note for $1,600, which deed was promptly recorded. According to the undisputed testimony, the grantee did not agree to purchase said property, and did not pay anything therefor. Neither was it the intention of the grantors to give him said land. The sole consideration for and the purpose of such conveyance was the creation of said vendor's lien note and the negotiation of the same for the purpose of raising money for the use of the grantors. The grantee, in pursuance of such plan, executed and delivered a deed of trust on said land to secure the payment of said note. Said note was negotiated, and grantors received the proceeds thereof. The tract of land so conveyed was situated across the road from a 212-acre tract of land on which grantors resided at the time. J. P. Garrison, the grantee in said deed, never took possession of said land nor actually claimed the same. J. C. Garrison, grantor in said deed, retained possession of said land, cultivated, used, and enjoyed the same, and paid the taxes thereon continuously thereafter until his death, which occurred December 16, 1928. J. P. Garrison and wife, on November 18, 1927, for a recited consideration of $3,280 cash and the assumption of the further sum of $1,970 evidenced by grantor's note, reconveyed said land to the said J. C. Garrison. The undisputed testimony shows that the sole purpose of this conveyance was to reinvest the grantee with the legal title to said land. Nothing was paid and nothing was promised therefor, and the grantee continued in the use and emjoyment of the land as before. Said deed was duly delivered to the grantee, but was not recorded until two days after the death of the grantee and one day after appellee's abstract of judgment was recorded. It was agreed on the trial that appellee had no actual notice of said deed of reconveyance at the time it recorded its abstract of judgment.
Appellee alleged in its original petition that the deceased, J. C. Garrison, left a last will and testament in which his surviving wife, Mrs. Mollie Garrison, was named as independent executrix and as sole devisee, and that said will had been filed for probate but had not at that time been probated.
The case was tried to the court and judgment rendered in favor of appellee Citizens' National Bank of Hillsboro against Mrs. Mollie Garrison, individually and as executrix of the estate of J. C. Garrison, deceased, and all her codefendants, establishing a judgment lien in the sum of $1,356.30, with interest and costs, and foreclosing the same upon said tract of land, and directing that order of sale issue and that said property be sold as under execution and the proceeds applied first to the satisfaction of appellee's judgment.
The case of Michael v. Knapp,
The case of Hawkins v. Willard (Tex.Civ.App.)
Our Supreme Court, in John B. Hood Camp v. De Cordova,
The same rule was applied by a special Supreme Court in the case of Johnson v. Darr,
The trial court based the judgment rendered on the fact that, at the time appellee's abstract of judgment was recorded, the record title to the land in controversy was in J. P. Garrison, the judgment debtor, and that the deed of reconveyance had not been recorded and appellee had no notice thereof. These facts, in view of the undisputed testimony that the equitable title to said land remained in J. C. Garrison and wife notwithstanding their deed to their son, J. P. Garrison, the judgment debtor, did not under the authorities hereinbefore cited entitle appellee to judgment foreclosing a lien upon said land, and such judgment is therefore reversed, and the cause is remanded.