Eason v. David

• Decision Date: 31 May 1950
• Docket Number: No. 4662,4662
• Parties: EASON et al. v. DAVID et ux.
• Court: Texas Court of Appeals

Page 427

232 S.W.2d 427

EASON et al. v. DAVID et ux.

No. 4662.

Court of Civil Appeals of Texas, Beaumont.

May 31, 1950.

Rehearing Denied June 29, 1950.

Second Motion for Rehearing Overruled Sept. 13, 1950.

O'Fiel & O'Fiel, Beaumont, for appellants.

Adams, Browne & Sample, and Ernest J. Browne, Beaumont, for appellees.

WALKER, Justice.

Appeal from an order granting a temporary injunction.

Appellees J. W. David and wife were the plaintiffs, and the appellants Eason and O'Fiel were two of the three defendants in the trial court. The third defendant was Reagan Baker, a constable of Jefferson County.

Plaintiffs brought the suit to remove a cloud from the title to land and for injunctive relief, temporary as well as permanent. The subject matter of the litigation is certain real property in the City of Beaumont, to wit, Lots 8, 9 and 10 in Block 1 of the Hackett Addition to said city. Plaintiffs alleged that they were the owners of, and were in possession of, this property and that defendants Eason and O'Fiel had caused a writ of possession to be issued under a judgment of the District Court of Jefferson County in Cause No. 24120, styled The City of Beaumont v. J. W. David, and that said defendants had delivered said writ to the defendant Baker, a constable of Jefferson County, for execution. Plaintiffs alleged further that said defendants threatened to execute this writ and to dispossess them of the property aforesaid. Plaintiffs alleged generally that they had title in fee simple to the property and also plead specially that they had title to said property by adverse possession under the three and ten year statutes of limitation. Plaintiffs charged that the writ of possession was wrongfully issued because it required delivery of possession to the City of Beaumont but had been procured without the City's consent and further, that the City claimed no interest in the property and was not seeking to dispossess plaintiffs. The plaintiffs also alleged, in effect, that the judgment under which the writ had been issued was dormant under Article 3773, R.S.1925, Vernon's Ann.Civ.St. art. 3773, and was barred by Article 5532, R.S.1925. Plaintiffs prayed judgment for title and for injunctive relief.

The trial court passed a restraining order and set the prayer for temporary injunction down for hearing.

Pending this hearing, defendants, Eason and O'Fiel answered, pleading among other matters that they had title to the property. They alleged that the judgment mentioned in the petition was a tax judgment in behalf of the City of Beaumont against the present plaintiffs, and that by virtue of a foreclosure sale under said judgment, the City of Beaumont became the owner of the property claimed by plaintiffs; and said defendants alleged further that they had acquired the City's title. Said defendants prayed judgment for title and possession. and for rents.

The constable also answered. Among other matters, he alleged that the writ of possession in his hands was returnable within 90 days and that this period had expired. It is not disputed that this writ was never executed.

Plaintiffs' prayer for temporary injunction came on for hearing, and was granted. The order in effect restrains defendants from executing any writ of possession issued under the judgment referred to in the pleadings and from interfering in any way with plaintiffs' possession. From this judgment defendants Eason and O'Fiel have appealed.

The proof made in the trial court raised only issues of law except, perhaps, in one particular hereinafter mentioned. Plaintiffs were the common source of the titles exhibited to the trial court.

The property in suit was conveyed to the plaintiffs by one James H. Block by a deed dated January 6, 1922; and since that time (or at least since 1922) the plaintiffs have resided and have made their home upon said property, holding said property all this while in actual, adverse, exclusive and uninterrupted possession, claiming to be the owners thereof. Plaintiffs' deed from Block was filed for record on February 6, 1922 and was recorded on February 11, 1922. These facts, with some testimony from Mrs. David that the constable had made some attempt to dispossess plaintiffs, constituted the proof made by plaintiffs.

In reply, defendants Eason and O'Fiel tendered evidence of title in themselves, as alleged by them. They first proved Block's deed to plaintiffs and then adduced the following documents as evidence of their title:

(1) Tax foreclosure judgment of the District Court of Jefferson County, dated January 23, 1936, rendered in Cause No. 24120, styled The City of Beaumont v. Joseph William David and Susie David. The defendants named are the present plaintiffs. This judgment awarded the City a recovery from the present plaintiffs, in personam and not in rem, of the taxes levied by said City for the years 1924 to 1934, inclusive, upon the property in suit, and foreclosed the tax liens securing the payment of said taxes, directed the issuance of an order of sale, and provided that 'in the event the right of redemption is not exercised within two years from date of sale, the clerk * * * shall issue a writ of possession to the purchaser.'

(2) Order of sale dated April 15, 1936, issued under the aforesaid judgment.

(3) Sheriff's return upon said order of sale. This return recites, in substance, that the property now in suit was sold on June 2, 1936, to the City of Beaumont for the amount of the judgment and costs accrued.

(4) Sheriff's deed dated July 10, 1936, conveying the property now in suit to the City of Beaumont, pursuant to the sale of June 2nd.

(5) Judgment of the District Court of Jefferson County dated June 15, 1949, (Some 13 years after the tax sale) rendered in Cause No. 251905 in behalf of Winston Eason against the City of Beaumont, awarding the said Eason the title and right to possession of the property now in suit.

(6) A quitclaim deed dated June 15, 1948, from the South Park Independent School District to Winston Eason, conveying the District's interest in the property in suit. It was not proved that the District ever had any interest in the property, and under the proof this deed was irrelevant to the issues made in the trial court.

(7) General warranty deed from Winston Eason to David E. O'Fiel dated June 15, 1949, conveying an undivided one-half interest in the property in suit.

(8) Entries in the Civil Fee Book, Tax Suits of the District Clerk of Jefferson County. These entries showed that on March 3, 1947, and on June 14, 1948, and on June 19, 1949, writs of possession were issued out of the said clerk's office under the tax judgment.

The writ of March 13, 1947 was put in evidence at the trial court's instance. Upon the place prepared for the officer's return was written in pencil: 'Returned request to Atty for plaintiff'. No signature was appended, and the form of the officer's return was not filled in. The writ of June 4, 1948, and never been returned to the clerk and could not be found, and there is no evidence concerning it other than the fee book entry listed above. The writ of June 10, 1949, remained in the hands of the constable. This writ was not executed. It was in the constable's possession at the time of the hearing, and according to the constable's answer, had expired by lapse of time.

The foregoing statement exhibits the proof made by defendants.

There was no proof that plaintiffs had exercised the right of redemption under the tax judgment. Instead, plaintiff J. W. David testified that as well as he could remember, he had not paid any taxes on the property since 'in 1936', and that 'I just didn't have the money to pay it'. We construe this testimony as showing that plaintiffs did not exercise their right of redemption.

No proof was made that defendants had attempted any dispossession of plaintiffs, or any interference with plaintiffs' possession, except under and by virtue of the writ of possession of June 19, 1949, referred to above; and no proof was made that defendants intended any interference with plaintiffs' possession other than by authority of judicial process.

Conclusions of Law.

The material arguments of the parties are adjudicated by the following comments:

(1) To the extent that the evidence raised questions of law as distinguished from questions of fact, the trial court's grant of the temporary injunction did not involve an exercise of discretion, and to this extent, at least, must be reviewed on this appeal. Southland Life Ins. Co., v. Egan, 126 Tex. 160, 86 S.W.2d 722.

(2) We assume (without deciding) that defendants Eason and O'Fiel had the same right as did the City of Beaumont to procure process under the tax judgment, since the existence of such a right has not been questioned, if said defendants own the City's title.

(3) The proof shows neither title nor any right to possession vested in the plaintiffs; and on this phase of the hearing the plaintiffs showed no 'probable right' nor any 'substantial controversy'. The plaintiffs' proof of title was completely rebutted by the defendants Eason and O'Fiel. These defendants proved an apparently valid foreclosure and sale of the property to the City of Beaumont which became absolute at the end of the two year redemption period, and that they had acquired this title from the City. On this proof, said defendants were entitled to possession and the plaintiffs' possession was wrongful. The plaintiffs apparently relied upon their adverse possession to defeat defendants' proof of title; but the statute of limitation under which plaintiffs claimed title, namely, Article 5510, R.S.1925, did not run against the City of Beaumont. Concerning Article 5507, the other statute under which plaintiffs alleged title, see: Burton's Heirs v. Carroll, 96 Tex. 320, 72 S.W. 581. The City bought the property at a sale under a tax judgment in its favor and must be taken to have held its title for resale, since there is no evidence...