Walraven v. Farmers' & Merchants' Nat. Bank
| Decision Date | 06 December 1899 |
| Citation | 53 S.W. 1028 |
| Parties | WALRAVEN v. FARMERS' & MERCHANTS' NAT. BANK et al. |
| Court | Texas Court of Appeals |
Both parties claim under titles emanating from the state. Appellees' is the older title; and, if appellant is estopped from denying its validity, of course it must prevail against his junior title. In affirming the judgment, we approved the ruling of the trial court, in holding that the judgment of the district court of Tarrant county, rendered December 15, 1895, was conclusive, and precluded appellant from assailing appellees' title. Upon further consideration, we are convinced that we committed error in this respect, and that the ruling referred to cannot be sustained upon the record presented to this court. There is no statement of facts in the transcript, and the Tarrant county judgment is described in this manner in the judge's findings of fact: "(4) That on December 15, 1895, in the district court of Tarrant county, Texas, in the cause of John W. Trevathan versus A. N. Schuster et al., being a suit brought to foreclose a mortgage or trust deed on said land and other lands, made by A. N. Schuster and A. Schuster to secure a debt of A. N. Schuster, who claimed title under Smissen, and to which the defendant James Walraven was made a party and duly served, a judgment was rendered against all the defendants, including the defendant Walraven, duly foreclosing said mortgage lien, and decreeing the sale of said land, which was done; and plaintiffs claim under the purchase of same." Appellees claim under the Schuster title; and, if it was shown that that title was in fact litigated in the Tarrant county case, then it would be proper to hold that the validity of that title was now res adjudicata. And the same conclusion might be reached if that issue could properly have been raised in that case. But in an action to foreclose a mortgage, while it is proper to make any one claiming under the mortgagor a party to the suit, the mortgagor's title to the land cannot properly be put in issue. Faubion v. Rogers. 66 Tex. 473, 1 S. W. 166; Wolf v. Harris (Tex. Civ. App.) 48 S. W. 529. The motion for a rehearing is granted, the judgment of the district court set aside, and the cause remanded for another trial. Reversed and remanded.
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KIRBY LUMBER CORPORATION v. Williams
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