Cooley v. Miller

• Citation: 228 S.W. 1085
• Decision Date: 16 March 1921
• Docket Number: (No. 204-3283.)
• Parties: COOLEY v. MILLER et al.
• Court: Supreme Court of Texas

Page 1085

228 S.W. 1085

COOLEY v. MILLER et al.

(No. 204-3283.)

Commission of Appeals of Texas, Section B.

March 16, 1921.

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

Action by the Guaranty Trust & Banking Company and others against Adelle Miller and others, in which Winchester Cooley intervened. From a judgment of the Court of Civil Appeals (207 S. W. 642), which reformed and affirmed a judgment for plaintiff in favor of the intervener, he brings error. Judgment of Civil Court of Appeals reversed, and that of district court affirmed.

J. G. Sweeney, of El Paso, W. M. Caldwell, of Houston, J. E. O'Neal, of El Paso, Williams & Neethe, of Galveston, and J. E. Quaid, of El Paso, for plaintiff in error.

M. W. Stanton, of El Paso, for defendants in error.

McCLENDON, P. J.

Mark and Adelle Miller, husband and wife, on February 12, 1904, executed a mechanic's lien upon two lots in the city of El Paso, their community property and homestead, in favor of H. F. Brown, to secure four notes of $500 each, due in one, two, three, and four years, respectively. Brown transferred the notes and lien to Burten-Lingo Company, and the latter in 1908 brought suit against Miller and wife, in cause No. 7388, for the balance then due and unpaid on the notes and to foreclose the mechanic's lien. While Mrs. Miller was made a party to this suit, she was not served with citation, and did not appear in the suit and had no notice thereof, although the sheriff's return showed service upon her and an answer was filed by an attorney purporting to represent her. Judgment was rendered in favor of the plaintiff for the unpaid amount of the notes and interest and foreclosure of the lien. The fact that Mrs. Miller was not served and did not authorize the appearance for her was not known to any party to this suit other than Mr. and Mrs. Miller.

Mark Miller made an arrangement with the Guaranty Bank & Trust Company, under which the latter agreed to buy the judgment, have the property sold thereunder and resold to himself, he to give vendor's lien notes for an amount sufficient to cover the judgment and certain notes which Miller owed the bank, as well as an additional sum of money which the bank agreed to loan Miller. This arrangement was carried out, the bank paying to Burten-Lingo Company substantially the full amount of the judgment and taking an assignment thereof. The property was sold, bought in by an agent of the bank, and sold by the agent to Miller, who gave vendor's lien notes covering the agreed amount, which notes were in turn transferred to the bank. The sale under order of sale was sufficient to pass Mr. Miller's interest in the property. This suit was brought by the bank against Mark Miller and wife upon these vendor's lien notes and for foreclosure of the vendor's lien. The suit was filed in 1910, and remained upon the docket until the cause was tried in 1917. In the meantime, the bank was placed in the hands of a receiver, and in the receivership the notes were sold to Winchester Cooley for the sum of $50; and Cooley intervened in the suit as plaintiff.

The trial court set aside the judgment in cause No. 7388, and rendered judgment in favor of Cooley for the full amount of the vendor's lien notes as against Mark Miller, and foreclosed the original mechanic's lien upon the homestead for the unpaid balance of the original mechanic's lien notes as against both Miller and his wife. This judgment was modified by the Court of Civil Appeals by reducing to $50 the amount for which foreclosure was allowed. Miller v. Guaranty Trust & Banking Co., 207 S. W. 642.

In the view we take of the case, it is not necessary to consider the many grounds upon which defendants in error question the correctness of the trial court's judgment. We have reached the conclusion that the judgment in cause No. 7388 was binding upon Mrs. Miller's homestead interest in the property foreclosed upon, regardless of whether she was a party to that suit. This conclusion, we think, controls every issue in the case, for the reason that the sale, under that judgment, was in all things regular in so far as Mr. Miller was concerned, and passed title to the purchaser at foreclosure sale. This title was reinvested in Miller by the sale to him, subject to the vendor's lien notes, the title to which passed from the bank through receivership sale to Cooley. The foreclosure sale being regular, it could not be set aside by Mrs. Miller, except for fraud upon her homestead rights. The only theory upon which fraud could be...