Clark v. Richardson

• Decision Date: 07 December 1922
• Docket Number: (No. 2654.)
• Citation: 247 S.W. 347
• Parties: CLARK et al. v. RICHARDSON.
• Court: Texas Court of Appeals

247 S.W. 347

CLARK et al. v. RICHARDSON.

(No. 2654.)

Court of Civil Appeals of Texas. Texarkana.

December 7, 1922.

Appeal from District Court, Bowie County; Hugh Carney, Judge.

Action by Fayette Richardson against R. E. Clark and others. From a judgment for plaintiff, defendant Clark and others appeal. Reformed and affirmed in part, and reversed and rendered in part.

This was a suit by appellee against R. E. Clark, C. W. Luckey, H. D. Baldwin, and the Citizens' Building & Loan Association, a corporation. Appellee alleged that he was the owner of certain lots and premises in an addition to Texarkana, and with his wife was using and occupying same as their homestead in February, 1919, when the parties named ousted him from the possession thereof, which possession they thereafter unlawfully retained. He further alleged that before said ouster occurred said building and loan association had had said land and premises sold under a deed of trust and at the sale had purchased the property; that the sale was void; and that said association and the other parties named had entered into collusion and a conspiracy to defraud him "out of said land and premises." His prayer was for a judgment quieting his title and awarding him a recovery of the property and the rental value thereof while he was dispossessed.

It appeared fgrom testimony heard at the trial that appellee owned the property December 23, 1914, when he conveyed it in trust to E. L. King to secure $500 of the purchase money thereof, which he owed the building and loan association. By the terms of the trust deed, if default was made in the payment of the indebtedness it secured, the trustee, at the request of the holder of the note, was to sell the property at public auction. The instrument contained a provision that if King should "fail or refuse, be unable or disqualified from acting" thereunder, the building and loan association might in writing appoint a substitute for him as trustee. By a writing dated December 12, 1918, reciting that King had refused to execute the trust, the building and loan association appointed one Eddins as a substitute for King as trustee. After giving notice, Eddins as such substitute trustee sold the property at public outcry. The building and loan association was the purchaser (for $50) at the sale, and Eddins by a deed as such trustee dated December 7, 1918 (when doubtless it should have been January 7, 1919), undertook to convey the property to the building and loan association. The defendants offered as evidence, but the court excluded it, a deed dated January 27, 1919, by which said association purported to convey the property to said R. E. Clark, who by a deed dated October 20, 1919, undertook to convey it to said H. D. Baldwin, who by a deed of the same date undertook to convey it to said C. W. Luckey. In July, 1919, Baldwin, who said, appellee testified, "he was working for Mr. Andrew Rose, for the Citizens' Building & Loan Assocation," took forcible possession of the premises, excluding appellee therefrom, and, it seems, thereafter, either for himself, or for Clark, or the building and loan association with Luckey, retained the possession thereof until December 17, 1919, when appellee had the sheriff take possession by virtue of a writ of sequestration which he (appellee) had sued out. A short time thereafter, to wit, on December 31, 1919, said Clark, Luckey, and Baldwin obtained possession of the property by means of a replevy bond with Sam Hardin and H. F. Herrington as sureties, which they made and delivered to the sheriff. The judgment awarded appellee a recovery of the property as against Clark, Luckey, Baldwin, and the building and loan association, and of $570 as rents thereof, and a recovery against Hardin and Herrington as sureties on the replevy bond of $450 as the rental value of the property from the time the replevy bond was made; and awarded the building and loan association, on its cross-action against appellee, a recovery of $1,011.27 as the amount of his indebtedness to it, and a foreclosure as against appellee and Essie Kizer of the lien asserted by the building and loan association against the property. It was provided in the judgment that the recovery awarded appellee against the building and loan association should be set off against the amount awarded said association, and that the judgment in favor of said association should be enforced only for the amount thereof remaining after the sum awarded appellee against it was deducted therefrom. The appeal is prosecuted by Hardin and Herrington, the sureties on the replevy bond, and Clark and the building and loan association.

E. L. Lincoln, of Texarkana, for appellants.

J. Q. Mahaffey, Wheeler & Robison and Keeney & Dalby, all of Texarkana, for appellee.

WILLSON, C. J. (after stating the facts as above).

Appellants insist, and we agree, that the judgment is wrong so far as it is in appellee's favor if the effect of the deed by Eddins as substitute trustee was to pass the title to the property to the building and loan association. But we think the testimony warranted the finding involved in the judgment that said deed did not...