Rudolph v. Hively
188 S.W. 721
Tex. App.
1916
Check Treatment
HAUL, J.

This action was brought by Louisa A. Hively, joined pro forma by her husband, Solomon E. Hively, against C. F. Rudolph alone for title and possession of a certain quarter section of land in Moore county. She alleged that in a former suit against her and others, filed by defendant Rudolph, in thé district court of Moore county, styled C. F. Rudolph v. J. M. Roach, Louisa A. Filer et al., said Rudolph recovered a judgment against the said Louisa A. Filer for the land now in controversy; that during the pendency of said suit the said Louisa A. Filer had married Solomon E. Hivеly, and, by reason of the citation issued in said suit and the judgment entered therein not being in her true name, the judgment was void. She alleges a deed to her from one M. Roach, сonveying the land in controversy.

The defendant, Rudolph, by his answer, showed the necessity of making additional parties. So plaintiffs filed their first amended original petition Octоber 2, 1914, naming C. F. Rudolph, James I. Boyer, C. C. Clever, Lon C. McCrory, Dick Pincham, Allie Pineham, J. M. Turner, and H. Altringer defendants.

The amended pleading set out the claim of the nonresident defendаnts; that on March 31, 1914, Rudolph executed a deed of trust, naming Lon C. McCrory trustee, and Dick Pincham, Allie Pineham, J. M. Turner, and H. Altringer as beneficiaries. They allege, further, that there is a deed of trust on record in Moore county, purported to be executed by J. M. Roach, September 5, 1904, naming C. C. Clever as trustee, to secure a note of $1,600, in favor of James I. Boyer, alleging said instrument was without consideration, fraudulent, and void.

■ The defendant Rudolph filed his second amended original answer July 27, 1915, pleading his title specially, claiming that he is the owner of the land in controversy by two alternative and sufficient chains of title. His allegations set out his title from J. M. Roach; sets up a mortgage from J. M. Rоach to C. A. McFarland, and its assignment to C. F. Rudolph the defendant, also a judgment of the district court of Moore county, dated January 26, 1910, foreclosing said mortgage and decreeing the title and possession of the land in controversy to ‍​​​‌‌‌‌​​​‌​​​​‌‌‌‌​​‌​‌‌‌‌​​‌‌​​​​‌​​‌​​‌‌​‌​‌​‍Rudolph. He further alleged that he is the owner of the note of $1,600, dated September 5, 1904, executed by J. M. Roach to J. I. Boyer and secured by deed of trust on the lands in controversy ; that said note was due five years after date, and had been extended five years after maturity, by writing an indorsement on the note and signed by the parties before its transfer to him. He sets up a trustee’s deed, foreclosing the deed of trust under the power of sale to satisfy the payment of the note above described by J. B. Mills, substitute trustee.

in reply to this amended answer, plaintiffs filed a second supplemental petition, excеpting to the judgment set up by the defendant because it did not foreclose the mortgage, but by its recitals transferred the title to the land without sale. It was further alleged that рlaintiffs were not parties to the foreclosure suit, and they interposed the statute of limitations as to the notes; that the deed of the trustee, foreclosing the dеed of trust, was void, the note being barred by limitation when the sale was made; and that the land was not advertised according to the provisions of the deed of trust.

Plaintiff filed аn affidavit, charging that the $1,600 note, alleged by Rudolph to have been made by Roach to Boyer, was a forgery; that all indorsements thereof and the assignments thereof to Rudolph were also forged.

The case was tried by the court without a jury, and judgment rendered in favor of plaintiff for the title and possession of the land.

[1] The first assignment, and proposition, is to the effect that in an action of trespass to try title the plaintiff cannot recover if there is any evidence of an outstanding superiоr title or interest. The outstanding title which appellant insists exists in this case is the alleged deeds of trust, executed by J. ‍​​​‌‌‌‌​​​‌​​​​‌‌‌‌​​‌​‌‌‌‌​​‌‌​​​​‌​​‌​​‌‌​‌​‌​‍M. Roach to J. I. Boyer, to secure payment of a note for $1,600. The well-established rule in this state is that a deed of trust is simply a security for the debt, and before foreclosure vests no title in the beneficiary. This deed of trust has nevеr been foreclosed, nor was foreclosure sought in this action.

*723 [2J Appellant next insists that plaintiffs are precluded by the judgment rendered in bis favor against J. M. Roacb, Rоuisa A. Filer, and others, January 26, 1910. It appears that Louisa A. Filer married Solomon E. Hively January 25, 1908. The citation as to her was issued June 23, 1909, upon a second amended originаl petition filed on the 23d day of June, 1909, and service was by publication. This question is settled by our Supreme Court, in Freeman et al. v. Hawkins et al., 77 Tex. 498, 14 S. W. 364, 19 Am. St. Rep. 769. In that case a judgment against Mary E. Rоbinson, removing cloud from the title to certain lands, was set out in bar of an action by Mary E. Freeman to recover the land. It seems that at the time she acquired the land her name was Mary E. Robinson, but afterwards, and before the institution of the suit against her, she married D. C. Freeman. She was served by publication as Mary E. Robinson. Stayton, Justice, said:

“On the marriage of Mary E. Robinson the law conferred on her the surname of her husband. 2 Bishop’s Marriage & Divorce, § 704a. A citation, whether to be served personally or by рublication, must contain the names of the parties to the action. R. S. art. 1215. We are of opinion that a citation by publication ‍​​​‌‌‌‌​​​‌​​​​‌‌‌‌​​‌​‌‌‌‌​​‌‌​​​​‌​​‌​​‌‌​‌​‌​‍requiring ‘Mary E. Robinson’ to be cited аnd_ to appear was not sufficient to give the court jurisdiction to render a judgment that would bind ‘Mary E. Freeman.’ McRee v. Brown, 45 Tex. 506.’’

As in that case, we conclude here that, the suit having been instituted agaist Louisa A. Filer, cited by publication, and judgment rendered against her in that name, she was not a party to the action, and the judgment as to her is void.

[3, 4] We thinx the judgment rendered in favor of Rudolph, and which he sought to introduce in evidence, was insufficient, in that it failed to comply with article 2000, Vernon’s Sayles’ Civil Statutes, relating to judgments in foreclosure proceedings. The judgment offered in evidence vests the title to the property, upon which foreclosure was sought, in Rudolph, and does not provide for the issuance of an order of sale, nor does it direct the sheriff to seize and sell the property as under execution, and it appears from thе record that the land in controversy was never sold under the judgment. Frankel v. Byers, 71 Tex. 308, 9 S. W. 160; McPhaul et al. v. Byrd et.al., 174 S. W. 645. The former judgment being void as to the plaintiff in this suit, because of a want of service of process, and because the statute relating to foreclosure of mortgages was not complied with, appellant acquired no title through such proceeding.

The deed of trust under which the sale was made by Mills, the sheriff, provided that notice of the sale should be published for 30 days in a newspaper published in the city of Dumas. No suсh publication was made, but the notice was posted in three public places in the ‍​​​‌‌‌‌​​​‌​​​​‌‌‌‌​​‌​‌‌‌‌​​‌‌​​​​‌​​‌​​‌‌​‌​‌​‍county. Where, by the terms of the mortgage, notice of sale must be published in a newspaper, if notice cannot be given because no newspaper is published in the county, the trustee cannot sell under the power without recourse to a court of equity. Dutton v. Cotton, 10 Iowa, 408; Perry on Trusts (6th Ed.) § 602q.

[5, 6] As stated, plaintiff filed an affidavit, charging that the $1,600 note, secured by this deed of trust, and all of its indorsements, were forgeries. The substance оf Boyer’s testimony is that he knew nothing whatever about the $1,600 note and mortgage, and claimed no interest whatever in any such note, or in the land in controversy. The burden restеd upon appellant to establish the genuineness of the note and indorsements as against this affidavit. As stated, the court filed neither findings of fact nor conclusions of law, and, so far as the record discloses, the judgment may have been based upon the court’s conclusion that the note was a forgery. This being true, the judgment and the trusteе’s sale, are both nullities. If the indorsements upon the note, extending the time under the statute, were forged, then the note, even if it could be held genuine, under the evidence, was barred by limitations. The judgment recites that the note is barred by the statute of limitation set up by plaintiffs, and we must presume, in support of the judgment, that the court found the indorsеments were forged. This being true, the sale by the trustee was void, for the further reason that it was made long after the note was barred and after the power contained in the deed of trust could be exercised.

It is unnecessary to consider the remaining assignments, and the judgment is affirmed.

iteoFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(teoEor other oases see same topic and KEY-NUMBER ‍​​​‌‌‌‌​​​‌​​​​‌‌‌‌​​‌​‌‌‌‌​​‌‌​​​​‌​​‌​​‌‌​‌​‌​‍in all Key-Numbered (Digests and Indexes