149 S.W. 1073 | Tex. App. | 1912
Lead Opinion
This suit was brought by appellee against appellant to remove cloud from title to 27 lots in the town of Paducah, Cottle county, Tex. Appellee, in his petition, sets out the title under which he held as follows: (1) Patent from the state of Texas to R. Potts. (2) Warranty deed from Potts to R. E. Avent. (3) Judgment for debt and foreclosure of an attachment upon the property-in question, in a suit wherein S. B. Harwell was plaintiff and the said R. E. Avent was-defendant; attachment levied on said property on the 11th day of June, A. D. 1894. Judgment and attachment of record in the justice court of Cottle county, Tex., and shown to have been recorded June 12, 1894, in the attachment record of Cottle county. (4) Sheriff’s deed, by virtue of an order of sale issued in said attachment proceedings and judgment from the justice court by said sheriff for R. E. Avent to Mrs. N. A. Harwell, dated January 23, 1895, and filed for record January 30, 1895, and recorded in volume 6, p. 194, deed records of Cottle county. (5) Affidavit from S. B. Harwell, dated July 26, 1910, filed for record July 26, 1910, and recorded in volume 18, p. 263, to the effect that his wife, the said Mrs. N. A. Harwell, had paid for said property with her separate funds. (6) Warranty deed from S. B. Har-well and wife, Emma A. Harwell, to appellee, dated February 11, 1909, filed for record March 6, 1909, and recorded in volume 14, p. 59, Cottle county deed records.
Plaintiff further set out, as showing defendant’s claim, and which he alleges clouded the title to said lots, the following instruments, to wit: Deed from R. E. Avent to J. H. Rule, dated December 18, 1893, filed for record July 14, 1894, and recorded in volume No. 6, p. 38, deed records of Cottle county. Quitclaim deed from Mrs. Maude Rule, widow of John H. Rule, to Johnnie Floyce Rule, dated June 2, 1910, filed for record June 13, 1910, and recorded in volume 8, p. 200, deed records of Cottle county.
All of said conveyances above referred to describe and include the lots in controversy, and, except the patent and the deed from pat-entee to R. E. Avent, were each admitted in evidence by the trial court (it being agreed that the said Avent was the common source of title); and the respective dates of the rendition of the judgment and of the execution of the various instruments and records of the same appear from the evidence to be correctly given as set out in appellee’s petition.
The appellant answered, claiming title to-the land, and by plea of not guilty, and introduced in evidence a certain bond for title, executed by R. E. Avent to J. H. Rule, conveying the lots in question, together with others, of date May 19, 1893, and filed for record May 24, 1893, in the office of the county clerk of Cottle county, and recorded the 24th day of May, 1893. A trial was had before the court, vyho rendered judgment for appellee, as prayed for in his petition, from which judgment appellant duly appeals to this court, and here asks that this cause be reversed and rendered.
In connection with appellant’s fourth and fifth assignments, we deem it necessary to here consider appellee’s first and only cross-assignment of error, which complains of the action of the court in admitting in evidence the deed or bond for title from R. E. Avent to J. H. Rule, under whom appellant holds, of date May 19, 1893, and recorded the 24th day of May, 1893, in the deed records of Cot-tle county, Tex., conveying the property in controversy, because said instrument shows to have been acknowledged before a justice of the peace of another state, and it is not shown that he was an ex officio notary public, because said certificate of acknowledgment is not attested by notarial seal; and, further, that the purported maker of the instrument is not identified therein; and appellee contends that the registration of said deed was a nullity, and not notice to any one. We are of the opinion that appellee’s objections are well taken, and said cross-assignment is sustained. Taylor v. Harrison, 47 Tex. 454, 26 Am. Rep. 304; Dean v. Gibson, 48 S. W. 57; Id., 34 Tex. Civ. App. 508, 79 S. W. 363; Carlisle v. King, 122 S. W. 584; Christy v. Romero, 140 S. W. 516; Hayden v. Moffatt, 74 Tex. 647, 12 S. W. 820, 15 Am. St. Rep. 866; McKie v. Anderson, 78 Tex. 207, 14 S. W. 576; Settegast v. Charpiot, 28 S. W. 580; Daugherty v. Yates, 13 Tex. Civ. App. 646, 35 S. W. 939.
We are further of the opinion that appellant’s said fourth and fifth assignments, which raise substantially the same question, to wit, the sufficiency of appellee’s title to support the judgment rendered, are without merit; and that upon the record and the law of the case appellee showed himself to have the superior title to the land in controversy, and is entitled to the relief granted by the trial court.
We therefore conclude that the judgment appealed from in this case should in all things be affirmed; and it is accordingly so ordered.
Rehearing
On Rehearing.
In view, however, of the fact that the case appears to have been tried in the court below upon the theory that, the property in controversy having been attached and the attachment recorded before the defendant’s chain of title was placed of record, the sale under the attachment would relate back to the levy and vest the purchaser at such sale with the superior title to the property, and that the question as to whether the attaching creditor, S. B. Harwell, had no notice of the unrecorded conveyance under which appellant holds appears to have been overlooked and not fully developed, we conclude that appellant’s motion for rehearing should be here granted, and this case reversed and remanded; and it is accordingly so ordered.
Lead Opinion
This suit was brought by appellee against appellant to remove cloud from title to 27 lots in the town of Paducah, Cottle county, Tex. Appellee, in his petition, sets out the title under which he held as follows: (1) Patent from the state of Texas to R. Potts. (2) Warranty deed from Potts to R. E. Avent. (3) Judgment for debt and foreclosure of an attachment upon the property in question, in a suit wherein S. B. Harwell was plaintiff and the said R. E. Avent was defendant; attachment levied on said property on the 11th day of June, A.D. 1894. Judgment and attachment of record in the justice court of Cottle county, Tex., and shown to have been recorded June 12, 1894, in the attachment record of Cottle county. (4) Sheriff's deed, by virtue of an order of sale issued in said attachment proceedings and judgment from the justice court by said sheriff for R. E. Avent to Mrs. N. A. Harwell, dated January 23, 1895, and filed for record January 30, 1895, and recorded in volume 6, p. 194, deed records of Cottle county. (5) Affidavit from S. B. Harwell, dated July 26, 1910, filed for record July 26, 1910, and recorded in volume 18, p. 263, to the effect that his wife, the said Mrs. N. A. Harwell, had paid for said property with her separate funds. (6) Warranty deed from S. B. Harwell and wife, Emma A. Harwell, to appellee, dated February 11, 1909, filed for record March 6, 1909, and recorded in volume 14, p. 59, Cottle county deed records.
Plaintiff further set out, as showing defendant's claim, and which he alleges clouded the title to said lots, the following instruments, to wit: Deed from R. E. Avent to J. H. Rule, dated December 18, 1893, filed for record July 14, 1894, and recorded in volume No. 6, p. 38, deed records of Cottle county. Quitclaim deed from Mrs. Maude Rule, widow of John H. Rule, to Johnnie Floyce Rule, dated June 2, 1910, filed for record June 13, 1910, and recorded in volume 8, p. 200, deed records of Cottle county.
All of said conveyances above referred to describe and include the lots in controversy, and, except the patent and the deed from patentee to R. E. Avent, were each admitted in evidence by the trial court (it being agreed that the said Avent was the common source of title); and the respective dates of the rendition of the judgment and of the execution of the various instruments and records of the same appear from the evidence to be correctly given as set out in appellee's petition.
The appellant answered, claiming title to the land, and by plea of not guilty, and introduced in evidence a certain bond for title, executed by R. E. Avent to J. H. Rule, conveying the lots in question, together with others, of date May 19, 1893, and filed for record May 24, 1893, in the office of the county clerk of Cottle county, and recorded the 24th day of May, 1893. A trial was had before the court, who rendered judgment for appellee, as prayed for in his petition, from which judgment appellant duly appeals to this court, and here asks that this cause be reversed and rendered.
Appellant, under her first assignment of error, complains that the court erred in *1075
admitting in evidence and in considering the judgment rendered in the justice court of precinct No. 1, Cottle county, in the case of Harwell v. Avent, because (1) said judgment shows upon its face to have been rendered by default upon citation by publication, and no attorney was appointed to represent the defendant; (2) because said judgment foreclosed a lien on real estate, and decrees that an order of sale issue, and that the real estate be sold, and is therefore void on its face for want of jurisdiction; (3) that said judgment is not registered or recorded as required by law. We are of the opinion that the assignment is without merit upon either of the grounds alleged. It is not shown by the record that such an attorney was not appointed to represent the defendant in said judgment, further than would be inferred from the failure of the judgment to recite the fact of such appointment; nor do we think that if it conclusively and affirmatively appeared that no attorney was appointed to represent said defendant that said judgment would thereby be rendered void and subject to collateral attack. Houston, etc., R. Co. v. De Berry,
Appellant's second assignment is to the effect that the sheriff's return on the writ of attachment in this case was not admissible, because the writ he was seeking to execute is not shown, and the statement thereunder is that appellee introduced the sheriff's return only. The recitals of the judgment show foreclosure of the attachment lien on the property in controversy, and directed that an order issue for the sale of the same; and the statement of facts recites that plaintiff introduced in evidence the sheriffs return on writ of attachment issued out of the justice court in this case, and recites that it came to hand on the 11th day of June, A.D. 1894, and was executed on the 11th day of June, 1894, by levying upon and taking into possession the property in controversy in this suit, and is signed by J. L. Gober, sheriff of Cottle county, Tex. We think the record sufficiently shows the issuance of the writ of attachment, and therefore conclude that said assignment should be overruled.
Appellant, under her third assignment, complains of the action of the court in admitting in evidence and in considering the sheriffs deed to Mrs. N. A. Harwell, because (1) said deed shows upon its face to have been made by virtue of an order of sale issued by a justice court; (2) that the deed purported to convey over 100 tracts of land (lots), and that they were sold in bulk for $50; (3) that no notice of sale was shown to defendants. The first of these objections has hereinbefore been considered and decided adversely to appellant. As to the second, the only evidence in the record as to whether the lots were sold separately or in bulk is the following recital in the deed: "And at said sale said premises hereinafter described and fully set out were struck off to Mrs. N. A. Harwell for the sum of $50, she being the highest and best bidder therefor, and that being the highest and best bid for the same." While it may be inferred from this recital that the lots were sold in bulk, it does not exclude the possibility that said lots were sold separately, and the total sum that they so brought stated as in the deed, instead of reciting the sale of each lot separately. We are also of the opinion that there is no merit in the objection, for the further reason there is neither claim nor evidence shown by the record that the lots were sacrificed; and this court cannot judicially know, in the absence of such claim and proof, that the sum realized, to wit, $50, was such grossly inadequate consideration for the 120 lots as would warrant our holding said deed void upon collateral attack. Wilson et al. v. Swasey et *1076
al. (Sup.) 20 S.W. 48. We are further of the opinion that there is no merit in appellant's third objection that no notice of sale was shown to the defendant. We are of the opinion that this is such irregularity merely as will not avail appellant to set aside said sale upon collateral attack after a delay of over 10 years, and that said objection of want of notice should here be considered as waived; and, further, that said notice is not essential to the validity of the sale upon this collateral attack — it not being shown that the irregularity complained of was brought about by the fraud or collusion of the purchaser, nor that the property sold for a grossly inadequate price. Morris v. Hastings et al.,
In connection with appellant's fourth and fifth assignments, we deem it necessary to here consider appellee's first and only cross-assignment of error, which complains of the action of the court in admitting in evidence the deed or bond for title from R. E. Avent to J. H. Rule, under whom appellant holds, of date May 19, 1893, and recorded the 24th day of May. 1893, in the deed records of Cottle county, Tex., conveying the property in controversy, because said instrument shows to have been acknowledged before a justice of the peace of another state, and it is not shown that he was an ex officio notary public, because said certificate of acknowledgment is not attested by notarial seal; and, further, that the purported maker of the instrument is not identified therein; and appellee contends that the registration of said deed was a nullity, and not notice to any one. We are of the opinion that appellee's objections are well taken, and said cross-assignment is sustained. Taylor v. Harrison,
We are further of the opinion that appellant's said fourth and fifth assignments, which raise substantially the same question, to wit, the sufficiency of appellee's title to support the judgment rendered, are without merit; and that upon the record and the law of the case appellee showed himself to have the superior title to the land in controversy, and is entitled to the relief granted by the trial court.
We therefore conclude that the judgment appealed from in this case should in all things be affirmed; and it is accordingly so ordered.
In view, however, of the fact that the case appears to have been tried in the court below upon the theory that, the property in controversy having been attached and the attachment recorded before the defendant's chain of title was placed of record, the sale under the attachment would relate back to the levy and vest the purchaser at such sale with the superior title to the property, and that the question as to whether the attaching creditor, S. B. Harwell, had no notice of the unrecorded conveyance under which appellant holds appears to have been overlooked and not fully developed, we conclude that appellant's motion for rehearing should be here granted, and this case reversed and remanded; and it is accordingly so ordered.
