Austin v. First State Bank & Trust Co.

• Decision Date: 07 May 1925
• Docket Number: (No. 220.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 275 S.W. 156
• Parties: AUSTIN et al. v. FIRST STATE BANK & TRUST CO. et al.
• Court: Texas Court of Appeals

275 S.W. 156

AUSTIN et al. v. FIRST STATE BANK & TRUST CO. et al.

(No. 220.)^*

Court of Civil Appeals of Texas. Waco.

May 7, 1925.

Rehearing Denied June 18, 1925.

Appeal from District Court, McLennan County; H. M. Richey, Judge.

Suit by the First State Bank & Trust Company and others to foreclose a vendor's lien against Mattie Austin and others. Judgment for plaintiffs. From an order overruling motion to set aside sale, defendants appeal. Affirmed.

See, also, 260 S. W. 275.

James E. Yeager, of Waco, for appellants.

Spell, Naman & Penland and E. C. Canon, all of Waco, for appellees.

GALLAGHER, C. J.

This is an appeal from an order of the district court of McLennan county overruling motion to set aside a sale made under order of sale issued on a judgment foreclosing a lien on certain real estate and directing the sale of the same and the application of the proceeds. Neither the pleadings of the parties in the original case nor the judgment of the court thereon are included in the transcript. No purported copies of the same, or any of the same, were attached to appellants' motion. We are therefore compelled to pass upon the issues presented in this appeal on the allegations contained in appellants' motion. These allegations are very meager, and we state the substance of the same in detail.

Appellants allege in their said motion that Dan Austin and his first wife owned as community property 132 acres of land, and used and occupied the same as a homestead; that said land was incumbered with a purchase-money lien in the sum of $1,600; that said Austin's first wife died, leaving as her heirs Addison Austin, now deceased, Laurinza Austin, Columbus Austin, Isaac Austin, Wyoma Walton, Bessie Brown, and Timothy Austin, a minor; that Dan Austin married Josephine Austin, his second wife, and that there was no child of said union; that Dan Austin became afflicted mentally and physically; that while in such condition he and his said second wife, without the consent of the heirs of his first wife, conveyed said land to his son Addison Austin; that said transfer was procured by appellee First State Bank & Trust Company and James H. Lockwood, who was alleged to be an officer of said bank; that the circumstances surrounding such transaction caused the heirs of the first wife to believe that Dan Austin was unduly influenced and overreached and that he did not know whether he was signing a deed or a mortgage; that Addison Austin and his wife Mattie Austin, one of the appellants herein, executed notes for the purchase price of said land; that the bank took said notes and claimed to have paid off said prior lien and to have also paid other community debts; that shortly thereafter Dan Austin died; that Addison Austin also died, leaving Mattie Austin, his wife, and Leslie Austin, Mattie Austin, Jr., Theodric Austin, Isaac Austin, Jr., Dero Austin, and Fannie Austin Hicks, a married daughter, his children surviving him; that said bank brought said original suit on said notes given by Addison Austin and wife for the purchase of said land, and made all of the above-named parties and other parties defendants; that there was no guardian ad litem appointed for Timothy Austin; that the heirs of Dan Austin's first wife defended against the said suit and filed a cross-action. Neither the nature of said cross-action nor its contents were stated.

Appellants further allege that said original suit herein was against Mattie Austin in person and as surviving widow, and against the children of Addison Austin and the other appellants herein for recovery on said notes and to foreclose the vendor's lien on said land, which was alleged to consist of three tracts, as described in the petition in said suit; that said original indebtedness amounted to about $4,400; that the court, on June 8, 1923, rendered judgment for said debt against Mattie Austin as survivor and foreclosed said lien and ordered the land sold to pay said judgment, and ordered the balance of the proceeds of sale remaining after satisfying said judgment to be paid into the registry of the court, to be divided by paying one half thereof to Mattie Austin and the remaining half to her children; that the judgment so rendered amounted, with costs, to $6,000. No description of said lands was given anywhere in said motion, but reference was made in said motion to the original petition in the case. Appellants further allege that order of sale was issued on said judgment in favor of appellee bank, and that said lands, on the first Tuesday in November, 1923, were sold in bulk to appellee Lockwood, and that he was put in possession of the same, and that he was withholding possession thereof from appellants. Appellants further allege that said sale should be set aside and held for naught because said judgment is absolutely void, on various grounds therein stated. These grounds will be hereinafter discussed. Appellants also allege that appellee Lockwood, the purchaser of said lands, was cognizant of all the facts; that they were the owners of the lands in fee simple; that the act of dispossessing them under said judgment and sale was malicious; and that they were entitled to recover $25,000 as rents and damages. They prayed for title and possession of said land; that said sale be set aside; that said judgment be set aside and declared void, and for recovery of their damages as alleged.

The court sustained a general demurrer to said motion, and this appeal followed.

Appellants, some 23 in number, seem to be divisible into four groups as follows: First, Mattie Austin, surviving wife of Addison Austin, and his children and heirs; second, the heirs of Dan Austin's first wife; third, the second wife of Dan Austin; and, fourth, certain persons whose relation to the issues involved herein is not disclosed and in whom no interest of any nature in the property sold is alleged. There is an apparent conflict of interests between the heirs of the first wife of Dan Austin and the surviving wife and heirs at law of Addison Austin, yet they join in this motion and in a common prayer that said judgment and the sale thereunder be declared void and that they recover the title and possession of the land and damages as alleged.

Appellants, in their brief, present 18 assignments of error, each of which is submitted as a proposition. Appellants, in their first proposition, contend that the court erred in sustaining a general demurrer to their said motion because the same contained the following:

"Plaintiffs herein allege that said sale of land should be set aside and held for naught, because the court was without jurisdiction to try said cause and render judgment therein, in that plaintiffs in the original cause sued Mattie Austin as survivor of Addison Austin, deceased, and her children, five of whom were minors without a lawful guardian, and the plaintiff First State Bank & Trust Company failed to allege `that there was no necessity for an administration of the estate of Addison Austin, deceased,' which alleged a good cause of action."

The probate court had no jurisdiction in the premises except over property belonging to the estate of Addison Austin, deceased. Its jurisdiction over such property was confined to the ordinary purposes of administration. Such jurisdiction was potential only and could be invoked as to the estate of the intestate only by application for temporary or permanent letters. It does not appear from appellants' allegations that any such application was ever made. That court, however, did not have even potential jurisdiction to adjudicate the merits of any adverse claim of title asserted by the heirs of the first wife of Dan Austin in their cross-action in the original suit. Neither did such court have jurisdiction to determine whether the debt asserted by the bank constituted a lien on any interest in said property which may have been claimed by them. So far as they and appellants, other...