Benn v. Security Realty & Development Co.

Decision Date10 November 1932
Docket NumberNo. 2263.,2263.
Citation54 S.W.2d 146
PartiesBENN et al. v. SECURITY REALTY & DEVELOPMENT CO. et al.
CourtTexas Court of Appeals

Appeal from District Court, Jefferson County; J. D. Campbell, Judge.

Two suits by Sabra Benn and others against the Security Realty & Development Company and others, which were consolidated. From the judgment, plaintiffs appeal.

Affirmed.

Kitching & Kenna, of Beaumont, for appellants.

D. E. O'Fiel, O. M. Lord, and W. R. Blain, all of Beaumont, for appellees.

WALKER, C. J.

On December 13, 1913, W. B. Cooper and his wife, Sabra, were divorced. As a part of the divorce decree the following property, owned by them on that date, was adjudged to be community property, belonging to them equally, to wit: "A part of the David Brown League and a part of the Mary Anderson one and a half acre tract lying east and adjoining the Herring Addition to the City of Beaumont, Texas, described by metes and bounds as follows: Beginning at the Northwest corner of the Mary Anderson one and a half acre tract thence east with said Mary Anderson north line one hundred feet for corner; thence south at right angles with said Mary Anderson north line 100 feet for corner; thence North on said Mary Anderson west line to her north west corner the same being the place of beginning and being a lot 60 by 100 feet out of the Northwest corner of the Mary Anderson 1½ acre homestead tract." On the date of the decree, this lot was vacant, unimproved property. The divorce judgment was not filed and recorded in the county clerk's office of Jefferson county until February 29, 1922. After the entry of the divorce decree, Sabra Cooper married Jim Benn.

On June 26, 1917, W. B. Cooper sold and conveyed by warranty deed the entire lot to Dr. F. W. Hander. On August 3, 1917, Dr. Hander filed suit in trespass to try title in the district court of Jefferson county against Sabra Benn and her husband, Jim Benn, to recover title and possession of the Cooper lot. No lis pendens notice of that suit was recorded in the county clerk's office of Jefferson county. On the 17th of April, 1918, judgment of nonsuit was entered in that case. On the 17th of September, 1917, during the pendency of that suit, Dr. Hander, for the recited consideration of $177, sold and conveyed by warranty deed the Cooper lot to R. C. Divers. One W. O. Crow was interested with Dr. Hander in this purchase, but his name did not appear in the deed to Dr. Hander. After the purchase by Dr. Hander, he and Crow began the erection of improvements upon the property, but before the improvements were completed the sale to R. C. Divers was consummated. On the 20th day of December, 1917, W. O. Crow and wife also executed a deed to R. C. Divers on the recited consideration of $10 and other good and valuable consideration. On the 15th of November, 1917, R. C. Divers, having completed the improvements, entered into a written contract with W. B. Cooper to sell the property back to him for $1,273.30, to be paid as follows: $20 in cash, and the balance in eighty-three monthly installments of $15.10 each, with interest at the rate of 10 per cent. per annum from maturity. Both the contract and the notes reserved the vendor's lien. The contract provided further that, upon the payment of the first forty notes, Divers would execute a warranty deed to Cooper, and that the failure to pay any of said notes when due or to perform any of the other conditions would forfeit, terminate, and abrogate the contract, and that Cooper would immediately deliver possession of the premises back to Divers, and that all payments theretofore made by Cooper to Divers would be forfeited to Divers to be held and retained by him as rent. On January 15, 1920, Divers conveyed the lot, with sixty unpaid notes, to Violet G. O'Fiel, who, by the terms of her deed, was to carry out the agreement between Divers and Cooper and was subrogated to all the rights, equities, and choses in action in favor of Divers against Cooper.

On the 23d day of April, 1925, claiming to own the notes given by Cooper to Divers, the Security Realty & Development Company, a corporation, filed suit against Cooper for the unpaid balance of these notes and to foreclose the vendor's lien reserved for their payment. Cooper died on the 16th of May, 1925, and soon after his death Security Realty & Development Company took possession of the property, claiming title thereto under the forfeiture clause in the contract between Divers and Cooper, repaired and rented it to certain tenants, and through its tenants was in continuous possession from the date it took possession until this case was tried. On the 30th day of November, 1925, Violet G. O'Fiel, joined by her husband, David E. O'Fiel, conveyed the property to Security Realty & Development Company, in which they owned practically all the corporate stock. The Security Realty & Development Company filed an amended petition in its suit against W. B. Cooper, making him and his heirs and certain other persons and their unknown heirs defendants and including other tracts of land in addition to the Cooper lot. The amended petition changed the cause of action from a foreclosure suit to an action in trespass to try title. Service was had thereon only by publication. None of the defendants answered. An attorney was duly appointed to represent them, and judgment was rendered on January 29, 1927, in favor of the plaintiff Security Realty & Development Company for all the land sued for.

On July 2, 1925, Sabra Benn, as a feme sole, filed suit against R. C. Divers, F. W. Hander, Security Realty & Development Company, and the heirs of W. B. Cooper (Willie Hebert and her husband King Hebert, Terry Cooper, and Gladys Cooper Brockington) in trespass to try title to recover the title and possession of the Cooper lot, claiming to own a one-half undivided interest therein under her divorce decree against W. B. Cooper. She pleaded the execution of the deed by Cooper to Hander and all the deeds and contracts under Hander and his grantees, as set out above, and prayed for their cancellation. On May 7, 1929, an amended petition was filed in that suit, making Mr. and Mrs. O'Fiel parties. They filed their answer on the 19th of September, 1929. In October, 1927, Sabra Benn, joined by Gladys Cooper Brockington and her husband and Lee Vernon Wilson and Terry Wilson, minors, suing by Sabra Benn as next friend, filed a second suit against Mr. and Mrs. O'Fiel and the Security Realty & Development Company.

The two suits filed by Sabra Benn were consolidated, and the plaintiffs filed their first amended original petition therein on the 21st of March, 1930, on which this case was tried, pleading that Sabra Benn was the divorced wife of W. B. Cooper; that Gladys Cooper Brockington, Terry Cooper, and Willie Hebert were the children of that marriage; that Sabra Benn had purchased the interest of Willie Hebert and Terry Cooper in said property which, added to her community interest, gave her an undivided six-eighths interest; that Gladys Cooper Brockington owned an undivided one-eighth interest and Lee Vernon Wilson and Terry Wilson, minors, together owned the other one-eighth interest; the judgment above described, as having been entered upon citation by publication, and all conveyances under W. B. Cooper and his grantees, direct and remote, were attacked by pertinent allegations with a prayer for cancellation and for the cancellation of the vendor's lien notes reserved in the Divers-Cooper contract. On the 27th of October, 1931, the defendants answered the consolidated suit by general and special demurrers, general denial, pleas of not guilty, and the two, three, five, and ten years statutes of limitations, and that they acquired their title under W. B. Cooper in good faith without notice of the claim of plaintiffs. They also pleaded improvements in good faith and other defenses not necessary to mention. Plaintiffs replied by a supplemental petition, pleading limitation against the superior title reserved in the Divers-Cooper contract and all the Divers-Cooper vendor's lien notes, claimed by Security Realty & Development Company, except note No. 83, and tendered payment of that note, but made no tender of payment of the other unpaid vendor's lien notes. Against this pleading defendants answered that they were the owners of the legal title to the property in controversy. In reply to this answer plaintiffs made no tender of any kind to defendants, except the payment of note No. 83, as stated above, nor did they plead any equities against the right of the defendants to declare the forfeiture and to repossess the property.

The jury found facts avoiding the judgment above described as having been rendered on citation by publication. The jury also found against the plea of ten years' limitation, pleaded by defendants, which was the only limitation issue submitted to the jury. The rental value of the property was fixed at $12 per month. Answering defendants' special issue No. 1, it was found that W. O. Crow, at the time he acquired his interest in this property, had actual notice of the claim of Sabra Benn in and to said property. Answering plaintiffs' special issue No. 2, it was further found that W. O. Crow could not have discovered, by the use of reasonable diligence, that Sabra Benn was asserting a...

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