Alkas v. United Sav. Ass'n of Texas, Inc.

• Decision Date: 10 May 1984
• Docket Number: No. 13-83-063-CV,13-83-063-CV
• Citation: 672 S.W.2d 852
• Parties: Necati ALKAS, Ind., d/b/a Contract Design and J.M. Heaner, Appellants, v. UNITED SAVINGS ASSOCIATION OF TEXAS, INC. and Los Campeones, Inc., Appellees.
• Court: Texas Court of Appeals

Page 852

672 S.W.2d 852

Necati ALKAS, Ind., d/b/a Contract Design and J.M. Heaner, Appellants, v. UNITED SAVINGS ASSOCIATION OF TEXAS, INC. and Los Campeones Inc., Appellees.

No. 13-83-063-CV.

Court of Appeals of Texas Corpus Christi.

May 10, 1984.

Rehearing Denied May 31, 1984.

Keith M. Baker, San Antonio, W.D. Seyfried, III, Law Offices of William E. York, McAllen, for appellants.

Joel W. Cook, Houston, C. Fount Ray, Brownsville, for appellees.

Before KENNEDY, BISSETT and GONZALEZ, JJ.

OPINION

KENNEDY, Justice.

This is an action to quiet title or in the alternative for reformation of a deed. Trial was to the court which granted the relief requested.

Prior to 1976, Valley International Properties (VIP) purchased several tracts of land, consolidated them and developed what is variously known as Valley Inn and Country Club or Valley International Country Club (VICC). Financing was provided by Brownsville Savings and Loan, predecessor to appellee United Savings. VIP and Brownsville Savings & Loan had many transactions, and there were several outstanding loans. VIP was having difficulty making some of its loan payments. A loan consolidation was negotiated. As a result of this consolidation, a deed of trust was prepared, Exhibit "A" to plaintiff's petition. This deed of trust covered 146.584 acres; however, two small tracts previously included in the security for the loans were omitted. The tennis courts and community postal boxes are described in Exhibit "B" to plaintiff's petition, and a part of the club house parking is described in Exhibit "C" to plaintiff's petition. Together, the two tracts amount to 2.1467 acres or 1.5% of the total acreage.

Subsequently, VIP continued to have financial problems, and on November 6, 1976, Brownsville Savings & Loan took possession of the property as mortgagee-in-possession. A petition in bankruptcy was filed, and, between December 7, 1976 and July 20, 1977, the property was in the hands of a receiver appointed by the Federal Court. The Federal Court returned possession to Brownsville Savings & Loan as mortgagee-in-possession.

VIP was also having difficulty paying its other creditors, and a number of abstracts of judgment were filed against it; among them were those of appellants Alkas and Heaner. Appellant Alkas' abstract was filed on November 17, 1976, and Heaner's on November 23, 1976.

On June 7, 1977, the property was sold at public sale by the trustee to appellant Los Campeones, Inc. with financing by Brownsville Savings & Loan.

In May of 1979, preparatory to another transaction, it was discovered that the field notes in the Deed of Trust of January 20, 1976 did not "close"; that is, the survey notes did not describe an enclosed piece of property; and that the two small tracts Exhibits "B" and "C," were omitted from the deed of trust. As a result of this discovery, the instant suit was instituted.

Plaintiffs (appellees) asked in their petition that title be quieted in them because the deed of trust was sufficient to cover the small tracts; or, in the alternative, plaintiffs plead that the omission was a scrivener's error or the result of mutual mistake and that the deed of trust should be reformed to include the small tracts. In the further alternative, plaintiff, United Savings, claims rights under an earlier deed of trust. VIP did not answer, and a default judgment was entered against them from which no appeal has been taken.

The trial court filed findings of fact, the substance of which is recited above. The trial court's conclusions of law were that (1) VIP was estopped from asserting title to the property; (2) the descriptions in the January 20, 1976 Deed of Trust was adequate to include the tracts in controversy; (3) the Deed of Trust, Notice of Trustee's Sale and Trustee's Deed should be reformed to include the tracts; (4) if the Notice of Sale and Deed are not subject to reformation, then the properties must be resold; (5) that appellants did not prove their abstracts of judgment were properly indexed and therefore have no lien on the tracts; and (6) judgment was properly rendered.

Appeal was perfected by Necati Alkas, Individually and d/b/a Contract Design and by J.M. Heaner. The appellants filed separate briefs in which Alkas raised thirty-eight points of error, and Heaner raises five points of error. Both appellants ask that this Court reverse and render judgment in their favor or, in the alternative, that the cause be remanded for a new trial.

Both appellants raise no evidence or, in the alternative, insufficient evidence points regarding the findings of fact. No error is raised regarding findings of fact numbers 12, 15, 19 and 21; therefore, they are binding on this Court. De la Fuente v. Home Savings, 669 S.W.2d 137 (Tex.App.--Corpus Christi 1984, no writ); Bilek v. Tupa, 549 S.W.2d 217 (Tex.Civ.App.--Corpus Christi 1977, writ ref'd n.r.e.). In considering a "no evidence" or "insufficient evidence" point of error, we will follow the well established test set forth in Glover v. Texas General Indemnity Company, 619 S.W.2d 400 (Tex.1981); Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); Allied Finance Company v. Garza, 626 S.W.2d 120 (Tex.Civ.App.--Corpus Christi 1981, writ ref'd n.r.e.); CALVERT, No Evidence and Insufficient Evidence Points of Error, 38 Tex.L.Rev. 361 (1960). In addition, in a nonjury case, the trial judge is the trier of fact, and it is his duty to decide issues of fact on the evidence, and he is not bound to adopt a party's contention as to the weight of the evidence. It is the court's right and duty to weigh the evidence and draw inferences and reasonable deductions therefrom. The court also had the duty to determine the credibility of the witnesses and the weight to be given their testimony in exactly the same manner as a jury would have done. McDaniel v. Carruth, 637 S.W.2d 498 (Tex.App.--Corpus Christi 1982, no writ).

Appellant Alkas, by his points of error numbered one through thirty-two and thirty-four and thirty-five, raises both no evidence and insufficient evidence points regarding all of the findings of fact not mentioned above. We have carefully examined the record and find the evidence sufficient to support each and every finding of the trial court, except finding number 17 in that it states the defendants had notice of the deed of trust from January 20, 1976. The Deed of Trust was filed for record on January 26, 1976. The filing of an instrument is notice to all persons. TEX.REV.CIV.STAT.ANN. art. 6646 (Vernon 1969), Repealed by Property Code effective January 1, 1984. See TEX.PROP.CODE Sec. 13.002 (Vernon 1984). The Court of Appeals will uphold the findings of the trial court, unless such findings are manifestly wrong. De la Fuente v. Home Savings, No. 83-014 (Tex.App.--Corpus Christi, March 15, 1984, no writ) (not yet reported); S & S Wholesale Supply, Inc. v. Los Cedros, Inc., 628 S.W.2d 493 (Tex.App --Corpus Christi 1982, no writ). the Trial court's finding that the appellants had notice of the Deed of Trust from January 20, 1976, is manifestly wrong. We find that appellants had notice of the Deed of Trust from January 26, 1976. TEX.REV.CIV.STAT.ANN. art. 6646 (Vernon 1969) and therefore sustain this point of error, but find it harmless. TEX.R.CIV.P. 434.

Appellant Heaner, by his first point of error, complains of the sufficiency of the evidence to support the findings that the property was conveyed by the Deed of Trust or that the parties intended it to be conveyed. By his second point of error, appellant Heaner complains that there is insufficient evidence to support the finding that Heaner had notice of the claim to the property of Brownsville Savings and Loan.

The principal issue in a suit to quiet title concerns the existence of a cloud on title that equity will remove. Bibby v. Preston, 555 S.W.2d 898 (Tex.Civ.App.--Tyler 1977, no writ). The primary requisite in a suit to quiet title is that the plaintiff must prove, and thereby recover on, the strength of his title and not on the weakness or invalidity of his adversary's title. In other words, to prevail, appellants must assert the right of VIP to the property and, based on that right, the validity of their liens. Therefore, until the validity of appellees' title is settled, the question of appellants' liens does not arise.

Plaintiff-appellee attempted to prove their title based on the Deed of Trust of January 20, 1976, by showing that the two small tracts are appurtenant to the described land; or by showing that there was a scrivener's error resulting in a mutual mistake so as to entitle them to a reformation of the instrument.

Under certain circumstances, the courts will construe an instrument so as to include an adjacent small parcel of land in the conveyance of a larger tract. An instrument of conveyance is construed to include a small parcel because it is against public policy to leave title of a small parcel in a grantor conveying a larger tract adjoining or surrounding the small parcel. Strayhorn v. Jones, 157 Tex. 136, 300 S.W.2d 623 (1957). The reason for this policy is that the land is of no benefit or importance to the grantor. Angelo v. Biscamp, 441 S.W.2d 524 (Tex.1969) (emphasis added). In order to obtain this construction, the appellees needed to show that the tracts were small in comparison to the land conveyed; that they were adjacent to or surrounded by the land conveyed; that the title to the tracts were in the grantor at the time of the conveyance; and that the tracts were of no benefit or importance to the grantor. The findings of fact show that the title to the small tracts was in VIP at the time of the Deed of Trust; that the small tracts were used as a part of VICC; that VIP has made no claim to the tracts since the foreclosure; that tennis courts are closely tied to the tennis pro shop and office; and that the parking lot is closely tied to the clubhouse. We must presume any omitted facts in support of the...