O'Fiel v. First Nat. Bank of Beaumont

• Decision Date: 16 May 1941
• Docket Number: No. 3842.,3842.
• Citation: 152 S.W.2d 475
• Parties: O'FIEL et al. v. FIRST NAT. BANK OF BEAUMONT et al.
• Court: Texas Court of Appeals

Page 475

152 S.W.2d 475

O'FIEL et al. v. FIRST NAT. BANK OF BEAUMONT et al.

No. 3842.

Court of Civil Appeals of Texas. Beaumont.

May 16, 1941.

Rehearing Denied June 4, 1941.

Appeal from District Court, Jefferson County; R. L. Murray, Judge.

Action by the First National Bank of Beaumont, Tex., against Violet G. O'Fiel, and her husband and others, to recover on a note and to foreclose a deed of trust lien wherein named defendant filed a demurrer. From an adverse judgment, the named defendant and her husband appeal.

Affirmed.

D. E. O'Fiel, of Beaumont, for appellants.

Smith, Smith & Boyd, of Beaumont, for appellee.

WALKER, Chief Justice.

This was an action by appellee, First National Bank of Beaumont, against Elias D. Shaboub and his wife, Mrs. Victoria Shaboub, on a promissory note in the sum of $500, less payments, executed on the 14th day of December, 1937, by the Shaboubs to appellee, with interest from date at the rate of eight percent per annum, and with ten percent attorney's fees, and to foreclose a deed of trust lien executed by Shaboub and wife to appellee on the following described property: Lots Nos. 1, 2, 3, and 4, Block No. 1, of the Prather subdivision in the James Drake Survey, Jefferson county. Appellee also prayed for foreclosure of its deed of trust lien against Mrs. Violet G. O'Fiel and her husband, David E. O'Fiel, on the following allegations: On the date of the execution of the deed of trust to appellee by the Shaboubs the property covered by the deed of trust was owned in fee simple by the Shaboubs; subsequently, in an action of trespass to try title by Mrs. O'Fiel in her separate right, joined by her husband, filed at a time when appellee's deed of trust was on record, against Elias D. Shaboub and others, to which appellee was not a party, Mrs. O'Fiel, on a disclaimer filed by Elias D. Shaboub, recovered judgment against him for the title and possession of lot No. 1; appellee's lien against lot No. 1 was superior to the after-acquired title of Mrs. O'Fiel. Mrs. O'Fiel answered by general demurrer, general denial, pleas of not guilty and res judicata, and by special plea that at the time appellee took its deed of trust on lot No. 1 she owned the superior and equitable title to lot No. 1, as against any claim of title on the part of Elias D. Shaboub.

On the 17th day of April, 1940, on trial to the court without a jury, judgment was rendered and entered against Elias D. Shaboub for the sum of $519.80, with interest at the rate of eight percent per annum from date of judgment, together with foreclosure of the alleged deed of trust lien on all property described therein against all the defendants. No request having been made therefor the trial court did not file conclusions of fact and law. Only Mrs. O'Fiel and her husband have prosecuted the appeal from the judgment of the lower court.

There being in the record no conclusions of fact, all inferences of fact arising on the testimony must be resolved in support of the judgment. Cameron County Water Improvement Dist. No. 8 v. Western Metal Mfg. Co. of Texas, Tex. Civ.App., 125 S.W.2d 650; City of West University Place v. Ellis, 134 Tex. 222, 134 S.W.2d 1038; Citizens State Bank of Clarinda, Iowa, v. Del-Tex Inv. Co., Tex. Civ.App., 123 S.W.2d 450; Davis v. Magnolia Petroleum Co., 134 Tex. 201, 134 S. W.2d 1042; Fordyce-Crosset Sales Co. v. Erwin, Tex.Civ.App., 121 S.W.2d 491; Humphrey v. Southport Pet. Co., Tex.Civ. App., 131 S.W.2d 395; Massachusetts Bonding & Ins. Co. v. Pittsburg Pipe & Supply Co., Tex.Civ.App., 135 S.W.2d 818; Service Parts Co., Inc., v. Bizzell, Tex.Civ. App., 120 S.W.2d 919.

Since appellee was not a party to Mrs. O'Fiel's action in trespass to try title against Elias D. Shaboub, and since appellee's deed of trust was on record when Mrs. O'Fiel instituted that suit, appellee was bound in no way by the judgment entered in her favor therein for the title and possession of lot No. 1. So, the controlling question presented by this appeal is whether on the 14th day of December, 1937, the date the Shaboubs executed their deed of trust to appellee covering lot No. 1, the title to this lot was in the Shaboubs or in Mrs. O'Fiel. If the title was in the Shaboubs, then the court correctly entered judgment against Mrs. O'Fiel and her husband foreclosing the deed of trust lien. Looney v. Simpson, Tex.Civ.App., 25 S.W. 476; Id., 87 Tex. 109, 26 S.W. 1065.

We give the Shaboubs chain of title: (a) By deed dated November 30, 1925, recorded same day, the O'Fiels conveyed lot No. 1 to Security Realty & Development Company, a corporation; (b) on June 21, 1926, in district court of Jefferson county, Security Realty & Development Company recovered judgment for lot No. 1 against Vance (Vince or V. H.) Bailey, Emma Bailey, Will Prater, L. L. Prater, and Florence Broussard for the title and possession of lot No. 1, together with a personal judgment against Vance (or Vince) Bailey for $622; (c) on January 25, 1927, Security Realty & Development Company, a corporation, conveyed by deed in writing to Deeb E. Shaboub all interest held by it in its judgment recovered on the 21st day of June, 1926, against the Baileys, the Praters and Florence Broussard, particularly conveying its interest in lot No. 1, recovered in that judgment; (d) on September 22, 1926, in district court of Jefferson county, David E. O'Fiel recovered judgment against V. H. Bailey for the sum of $2,067.02, with foreclosure of deed of trust lien against V. H. Bailey and his wife on lot No. 1; (e) on January 26, 1927, David E. O'Fiel transferred and assigned his judgment against V. H. Bailey to Deeb E. Shaboub, in which he recited "I hereby fully transfer and assign to the said Deeb...