Cleveland State Bank v. Gardner, 1568-5914.
| Decision Date | 09 June 1932 |
| Docket Number | No. 1568-5914.,1568-5914. |
| Parties | CLEVELAND STATE BANK et al. v. GARDNER et al. |
| Court | Texas Supreme Court |
E. W. Love, of Cleveland, and W. L. Hill and Taylor J. Hughes, both of Houston, for plaintiffs in error.
Llewellyn & Dougherty, of Liberty, for defendants in error.
The Court of Civil Appeals has submitted a certificate in the above case, containing a certified question. The case is pending in that court on a second appeal. In the first appeal the case reached the Supreme Court, and the judgment of the trial court was reversed, and the cause remanded. Cleveland State Bank v. Ralph Gardner et al., 286 S. W. 173. The suit was originally brought by Ralph and Elmer Gardner against the bank, and others, to clear the title to 160 acres of land which the Gardners claimed. The bank, in its answer filed on March 6, 1923, set up a cross-action of trespass to try title against the Gardners, for the recovery of said 160 acres of land. After the case was reversed on the former appeal, the Gardners dismissed their suit, and the new trial was had on the cross-action of trespass to try title, which the bank had asserted against them; to which cross-action the Gardners had pleaded not guilty. Other new parties have been substituted in place of both the bank and the Gardners, to whose respective rights said new parties have succeeded. Since this substitution of new parties has no material bearing on the question certified, we shall disregard same in our discussion of the case.
The material facts set out in the certificate are substantially as follows: On November 21, 1918, one C. B. Granbury deeded to one Ed Cochran a tract of about 1,500 acres of land in San Jacinto county. For part of the consideration for the conveyance, Cochran executed to Granbury three notes for $4,865.44 each. The notes were numbered 1, 2, and 3, respectively, and were payable one, two, and three years from date. The vendor's lien on said land, to secure the payment of the notes, was expressly retained in the deed. The deed was duly recorded. On April 1, 1920, Cochran deeded to Ralph and Elmer Gardner a tract of 160 acres of the 1,500 acres covered by the deed from Granbury to Cochran. This deed to the Gardners was duly recorded June 3, 1920. After notes Nos. 2 and 3 fell due, Granbury assigned them, together with the vendor's lien securing same, to the Cleveland State Bank. The bank afterwards brought suit against Ed Cochran on said two notes; and for foreclosure of the vendor's lien on the 1,500 acres of land. Neither Granbury nor the Gardners were parties to that suit. Judgment was rendered in said suit on April 6, 1922, in favor of the bank against Cochran, for the sum due on the two notes, and the vendor's lien on the 1,500 acres of land was foreclosed. At the foreclosure sale, under said judgment, the bank became the purchaser of all the land, including the 160 acres in the possession of the Gardners, which they held under their deed from Cochran. In the purchase, the bank bid the sum due on the judgment; the amount bid being credited on the judgment. The sheriff executed to the bank a deed to all said land. The question which has been certified is, in effect, whether or not, by its purchase at said sale, the bank became vested with the superior legal title to all said land, including said 160 acres, and thus became entitled to maintain a suit in trespass to try title against the Gardners, for said 160 acres.
It is well settled that, where a subvendee holding the land under the original vendee, in an executory sale of land, is not a party to a...
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