Cain v. Balcom
| Decision Date | 24 November 1937 |
| Docket Number | No. 2104-6954.,2104-6954. |
| Citation | 109 S.W.2d 1044 |
| Parties | CAIN et al. v. BALCOM et ux. |
| Court | Texas Supreme Court |
This is a suit of trespass to try title brought by George S. Balcom on June 13, 1933, against P. J. Cain, Reed Automobile Company, S. K. Stratton, and Beitel Bros. Lumber Company. The land sought to be recovered consists of a certain city lot in Corpus Christi. The defendants Cain, Reed Automobile Company, and Stratton set up in their answer, among other things, a plea of not guilty, and a special plea of res adjudicata. The case was tried before a jury, but at the conclusion of the testimony the trial court peremptorily instructed a verdict for the defendants. Judgment was entered accordingly and Balcom appealed. The Court of Civil Appeals reversed the judgment of the trial court and remanded the cause. 81 S.W.(2d) 827.
The main questions in the case go to the defense of res adjudicata set up by the defendants. The facts which bear on these questions are substantially as follows:
Stratton and Balcom claim under a common source; one J. O. Brouse being the common source. On June 8, 1928, Brouse and his wife executed a note for $1,000 to Nellie Whalen, and to secure the note they executed a deed of trust covering the land in controversy. On September 17, 1928, Balcom sued Brouse on a money claim, in a justice court of Nueces county, and the next day caused a writ of attachment to be duly issued and levied on said land. On December 11, 1930, judgment was duly rendered in said justice court suit, in favor of Balcom for the debt sued for. In the judgment the attachment lien was duly preserved. On April 7, 1931, the land was duly sold at an execution sale under said judgment. Balcom was the purchaser at said sale and the sheriff executed to him a deed to the land. In the meantime, J. O. Brouse and wife had conveyed the land to the Reed Automobile Company, by deed bearing date September 22, 1928—4 days after the levy of the attachment. The Reed Automobile Company, through its tenant, P. I. Cain, took possession of said land in January, 1931; and Cain remained in possession thereof, as the company's tenant, until November 12, 1932. On May 26, 1931, Balcom filed a suit of trespass to try title in the district court for the 117th district, in Nueces county. The suit was against Cain and the Reed Automobile Company for the recovery of said land. Cain and the company duly answered in the suit by plea of not guilty and also set up a cross-action of trespass to try title. On August 4, 1931, the trustee in the Whalen deed of trust duly offered the land for sale in public auction for the purpose of satisfying the Whalen note, which note Stratton had acquired. Stratton bid the sum of $3,100 at said sale, and the land was struck off to him for the amount of his bid. Nothing further was done in this respect. Stratton never paid any part of his bid, never received from the trustee a deed to the land, and did not go into possession of the land under said sale. On August 18, 1931, Balcom filed a motion in the suit which he had instituted in the 117th district court, in which motion he sought the dismissal of the plaintiff's suit and the cross-action of the defendants. The grounds for dismissal alleged in the motion are reflected in the judgment of dismissal which the court rendered on August 18, 1931, and which reads as follows:
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