Farhart v. Blackshear

• Citation: 434 S.W.2d 395
• Decision Date: 07 November 1968
• Docket Number: No. 15354,15354
• Parties: H. H. FARHART, Appellant, v. George Gordon BLACKSHEAR et al., Appellees. . Houston (1st Dist.)
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 395

434 S.W.2d 395

H. H. FARHART, Appellant, v. George Gordon BLACKSHEAR et al., Appellees.

No. 15354.

Court of Civil Appeals of Texas Houston (1st Dist.).

Nov. 7, 1968.

Rehearing Denied Dec. 5, 1968.

George W. Eddy, Houston, for appellant.

Fred C. Brigman, Jr., Houston, for appellees First National Bank in Dallas and Kathleen McCall Martin.

Gordon A. Dotson, Houston, for appellees Willis Blackshear and others.

Harold R. Allison, Houston, for appellee Howard Blackshear.

M. Leon Kalvort, Houston, for appellees Gracie Smith Brown and Catherine Boniaby; Brigman, Martin & Smith, Dotson & McFarland, Houston, of counsel.

COLEMAN, Justice.

This is a suit in trespass to try title. The trial was to a jury and at the conclusion of the evidence both appellant and appellees filed motions for judgment. The trial court overruled appellant's motion and granted appellees' motion. Thereafter a take nothing judgment was entered against appellant.

On December 4, 1959, John D. McCall and Kathleen McCall Martin, joined pro forma by her husband Hobson Martin, filed suit in trespass to try title to recover title to and possession of 153 acres, more or less, situated in the Joseph Miller Survey, Abstract No. 50 in Harris County, Texas, against George Gordon Blackshear and others and against Grogan Lumber Company for damages suffered by reason of the wrongful cutting and removal of timber from the described land. The defendants, other than Grogan Lumber Company, answered, and Marye McDonald Foss, joined pro forma by her husband, intervened in the suit claiming to be the owner of said land, and prayed that others, including W. L. Pickens, be made parties to the suit. John D. McCall died before trial, and First National Bank in Dallas, as Executor and Trustee of his estate, was substituted as a plaintiff. H. H. Farhart acquired the title of Marye McDonald Foss, pendente lite, by deed dated July 23, 1965.

Prior to the trial an agreed interlocutory judgment was entered whereby W. L Pickens recovered the minerals in, on and under the subject property. Also prior to the trial the McCall plaintiffs and the Blackshear heirs, defendants, settled their dispute by entering an agreed interlocutory judgment dividing the surface between them. At the trial, therefore, the intervenor, H. H. Farhart, assumed the position of plaintiff and the McCalls and Blackshears became the defendants.

It was stipulated that Joseph and Mary Blackshear were the common source of title. During the year 1932 and the first few days of January, 1933, George Gordon Blackshear, also known as George Gordon, acquired the interest of some of the Blackshear heirs. On January 4, 1933, he conveyed the land to J. H. Ratcliff. J. H. Ratcliff acquired the interest of other Blackshear heirs in January, 1933. On January 10, 1933, J. H. Ratcliff borrowed a sum of money from the Estate of Joe De Hart, a minor, and to secure the loan executed a deed of trust conveying the land to Kenneth H. Aynesworth, Jr., Trustee, dated January 10, 1933, and filed for record on January 28, 1933. On March 3, 1933, J. H. Ratcliff conveyed the land, subject to the note and deed of trust, to S. Bloom. On June 4, 1934, J. H. Ratcliff again conveyed the land to Marye McDonald. On November 3, 1957, Marye McDonald acquired by quitclaim deed the interest in the land which may have been owned by the heirs of Sam Bloom, who died in 1935, and of his wife, Estella Bloom, who died in 1944. As previously recited, the Marye McDonald claim was acquired by H. H. Farhart in 1965.

In September, 1934, Kenneth H. Aynes worth, Jr., by trustee's deed dated September 4, 1934, conveyed the land to Mrs. Nettie Reed, Guardian of Joe De Hart. Appellant offered into evidence certain proceedings in Cause No. 229,507, styled Joe De Hart vs. J. R. Ratcliff et al, in the 80th Judicial District Court of Harris County, Texas. These instruments are found in appellant's Bill of Exceptions and reflect that on July 18, 1936, Joe De Hart filed a suit in trespass to try title alleging ownership of the land in question naming as defendants the Blackshear heirs, J. H. Ratcliff, S. Bloom, Marye McDonald and her husband. In the alternative he alleged the execution of the note to Nettie Reed, Guardian, by J. H. Ratcliff and his wife, and of the deed of trust securing same to Kenneth H. Aynesworth, Jr., Trustee, default in payment of taxes and interest, acceleration of the maturity of the note by reason thereof, request by Nettie Reed to the trustee that the property be sold under the terms of the deed of trust, a sale by the trustee in full compliance with the terms of the deed of trust and the law, purchase by Nettie Reed, Guardian, and conveyance of the property to Nettie Reed, Guardian by the trustee. He alleged that he was the legal and equitable owner of the property and of the note, on which a balance of $850.00 remained due, together with additional interest and attorney's fees, and prayed judgment for title to and possession of the property and damages for rents during the period possession had been withheld, as well as judgment for the balance due on said note after application of the amount bid at the trustee's sale, and, in the alternative, judgment on the note, plus interest and attorney's fees and foreclosure of his liens on the land. He also alleged title by reason of adverse possession by himself and his predecessors in title.

J. H. Ratcliff and a number of the Blackshear heirs, including George Gordon, were served personally. George Gordon and several of the other Blackshear heirs filed answers. It appears that J. H. Ratcliff did not file an answer, and that neither Sam Bloom nor Marye McDonald were served with citation. On the 28th day of October, 1941, there was entered in this case an 'Order of Dismissal' reading (formal parts omitted):

'On this the 28 day of October, 1941, at the request of plaintiff, Joe De Hart, the above entitled and numbered cause is hereby in all thingsdismissed with prejudice, all costs to be assessed against the defendants, and it further appearing to the Court that all costs herein have been paid by the defendants, it is further Ordered that no execution shall issue therefor.'

/s/ Roy H. Campbell

Judge

On September 23, 1935, the final account of Nettie Reed, Guardian, was approved, and she was discharged as guardian.

Joe De Hart then conveyed the property to W. Noble Carl on June 10, 1938, who, in turn, conveyed to Houston Title Guaranty Company on January 16, 1939. The Title Company conveyed the property to S. A. McCall, Trustee, on October 23, 1941.

Certain affidavits of heirship and affidavits relating to the issue of adverse possession were admitted into evidence as ancient instruments. There was testimony that the Blackshear heirs, or some of them, remained in possession of the property in person and through tenants to the date this suit was filed.

The plaintiff in an action of trespass to try title must recover on the strength of his own title, and may not rely on the failure of the defendant to prove a perfect chain of title from the agreed common source into the defendant.

Appellant, occupying the position of the plaintiff in this action, had the burden of proving a good title into himself. J. H. Ratcliff conveyed both to Sam Bloom and to Marye McDonald, and appellant had to show that title derived from one or both of these conveyances was superior to the title of the McCalls derived from the deed of trust from Ratcliff to Kenneth H. Aynesworth, Jr., Trustee. The deed of trust was prior in time to both of the other conveyances and was recorded in Harris County prior to the execution of either of these deeds. Appellant attempted to meet this burden by introducing the proceedings in Cause No. 229,507 previously described, and asserts that the trial court erred in refusing to admit these proceedings into evidence.

It is appellant's position that the judgment of dismissal with prejudice entered in that cause was a judgment adverse to Joe De Hart as to all issues raised in, or that could have been raised in, that suit. He contends that this judgment constitutes an adjudication that the trustee's deed to Nettie Reed, Guardian, is invalid, and, further, that Joe De Hart had no title to the property involved, the same property that is the subject matter of this suit. He asserts that the deed from Joe De Hart to W. Noble Carl, having been executed pendente lite, and after a proper lis pendens notice was filed, conveyed nothing. To reach these conclusions appellant relies on the doctrine of res adjudicata.

As we previously noted neither Sam Bloom nor Marye McDonald was shown to have been served with citation in Cause No. 229,507. Conceding that appellant is correct as to the effect of a judgment dismissing a cause with prejudice, such judgment is res adjudicata as to the issues of fact or questions of law raised in, or which properly could have been raised in, the suit, and cannot be relitigated in a subsequent suit between the same parties or those in privity with them. The doctrine of res adjudicata may not be invoked by one who is not bound by the judgment in the earlier proceeding. Swilley v. McCain, 374 S.W.2d 871 (Tex. 1964).

In Kirby Lumber Corporation v. Southern Lumber Co., 145 Tex. 151, 196 S.W.2d 387 (1946), the Supreme Court said:

'It appears to be a recognized principle of law that where, in a former suit, an essential issue of fact has been determined and adjudicated, the judgment therein will estop the parties from relitigating the same issue in a subsequent suit between the same parties, even though the subsequent suit is upon a different cause of action. Houston Terminal Land Co. v. Westergreen, 119 Tex. 204, 27 S.W.2d 526; Stephenson v. Miller-Link Lumber Co., Tex.Com.App., 277 S.W. 1039; Hanrick v. Gurley, 93 Tex. 458, 54 S.W. 347, 55 S.W. 119, 56 S.W. 330. It is also true that the protection of such a decision as well as its restrictions extend not...