Connor Bros. v. Williams

• Decision Date: 19 January 1938
• Docket Number: No. 1713-6981.,1713-6981.
• Parties: CONNOR BROS. v. WILLIAMS et al.
• Court: Texas Supreme Court

112 S.W.2d 709

CONNOR BROS. v. WILLIAMS et al.

No. 1713-6981.

Commission of Appeals of Texas, Section B.

January 19, 1938.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Action by Robert Williams, as administrator of the estate of Steve Williams, deceased, and others against Connor Brothers, for title and possession of land. A judgment of the district court, awarding defendants an undivided 907/1025 interest, and plaintiffs an undivided 118/1025 interest in the land, was reversed by the Court of Civil Appeals, and judgment rendered for plaintiffs for title and possession of the entire tract, 83 S.W.2d 692. From the latter judgment, defendants bring error.

Reversed and remanded.

King, Mahaffey, Wheeler & Bryson, of Texarkana, C. E. Bryson, of Houston, and Henderson & Bolin, of Daingerfield, for plaintiffs in error.

J. A. Ward, of Mount Pleasant, for defendants in error.

Geo. T. Burgess, of Dallas, and Raymond Edwards, of San Antonio, amici curiæ.

SMEDLEY, Commissioner.

Robert Williams, as administrator of the estate of Steve Williams, and the other defendants in error sued Connor Bros., plaintiffs in error, for the title and possession of a tract of land containing 100 acres in Titus county. The district court's judgment awarding to plaintiffs in error an undivided 907/1025 interest and to defendants in error an undivided 118/1025 interest in the land was reversed by the Court of Civil Appeals and judgment rendered in favor of defendants in error for the title and possession of the entire tract of land. 83 S.W.2d 692.

The important facts, which are undisputed, are thus stated in the opinion of the Court of Civil Appeals:

"The land was community property of Steve and Minnie Williams. The latter died August 18, 1920. On February 2, 1921, Steve Williams, as the community survivor, conveyed the land in trust to John M. Henderson to secure Williams' note for $1,025 in favor of J. C. Tidwell & Co. Of said sum $907 was a community debt, and the balance of $118 was a debt incurred by Williams after the death of his said wife. At a later date Williams married again. * * *

"Connor Brothers later acquired the note and lien. Successive renewals of the note were duly executed, the last renewal extending maturity to November 1, 1928.

"Steve Williams died September 2, 1929, and the plaintiff Robert Williams was appointed and qualified as administrator of his estate. The administration is still pending. The plaintiffs are the heirs at law of Steve and Minnie Williams. The claim upon the note and lien was never presented to the administrator as by law required. The note not having been paid, the trustee, Henderson, on November 1, 1932, at the request of Connor Brothers, and assuming to act under the power of sale conferred by the deed of trust, sold the land to Connor Brothers and executed deed therefor. On the date of the sale Connor Brothers went into possession of the land and have since remained in continuous exclusive possession.

"The land was a part of the rural homestead of Williams and his two wives. The second wife continued to live upon the home tract, of which the 100 acres was a part, until the trustee's sale to Connor Brothers. A year before the trustee's sale the administrator had paid all debts owing by the estate of Steve Williams except the note to Connor Brothers. Except for the payment of such note, the administration, it seems, was ready to be closed."

The Court of Civil Appeals held that plaintiffs in error acquired no title under the trustee's sale and deed because the sale was made at the request of Connor Bros., the owners of the note, rather than at the request of J. C. Tidwell & Co., the payees in the note. That court further held that plaintiffs in error Connor Bros., having gone into possession under a void nonjudicial foreclosure, were not mortgagees lawfully in possession, but were trespassers and could not invoke equitable protection against recovery of possession by defendants in error without payment of the debt. By notation made in granting the application for writ of error, the Supreme Court indicated tentatively its disapproval of both of said rulings of the Court of Civil Appeals.

We express no opinion as to the first ruling, because we have reached the conclusion, on the authority of Federal Land Bank of Houston v. Tarter, Tex.Civ. App., 86 S.W.2d 523, 527, that the trustee's sale of the land, even though it was homestead, was ineffectual to divest the heirs of Steve and Minnie Williams of their title and to vest title in the purchasers at such sale. This, because at the time the sale was made administration of the estate of Steve Williams was pending in county court. As said by Chief Justice Gallagher in the elaborate and well-supported opinion in the Tarter Case: "The county court has not only potential jurisdiction in a pending administration to approve a claim secured by a valid and enforceable lien on the homestead and to order the sale thereof to satisfy such claim, but such jurisdiction is exclusive." The dismissal of the application for writ of error in that case evidenced the Supreme Court's approval of the decision of the Court of Civil Appeals that the trustee's sale was invalid for the reason stated; that decision being the basis of the judgment of that court, and the correctness of such decision the sole question presented in the application for writ of error.

Neither the fact that no order had been made by the probate court, at the time of ...