Forest Lawn Lot Owners Ass'n v. State

• Decision Date: 14 March 1952
• Docket Number: No. 14469,14469
• Citation: 248 S.W.2d 793
• Parties: FOREST LAWN LOT OWNERS ASS'N v. STATE et al.
• Court: Texas Court of Appeals

Page 793

248 S.W.2d 793

FOREST LAWN LOT OWNERS ASS'N v. STATE et al.

No. 14469.

Court of Civil Appeals of Texas, Dallas.

March 14, 1952.

Rehearing Denied May 9, 1952.

Eades & Eades, Dallas, for appellant.

Price Daniel, Atty. Gen., Clinton Foshee and William S. Lott, Asst. Attys, Gen., Henry Wade, Dist. Atty., of Dallas County, John J. Fagan, Asst. Dist. Atty., C. A. Mattay and Geo. S. Peabody, Dallas, for appellees.

CRAMER, Justice.

Forest Lawn Lot Owners Association, a corporation, hereafter called 'Lot Owners,' brought this suit against the State of Texas, hereafter called 'State,' under authority of House Concurrent Resolution No. 77, 51st Legislature, Regular Session of 1949. The action is for damages for the taking, damaging and destruction of plaintiff's property for public use by the State without adequate compensation, in violation of Art. 1, sec. 17 of the Constitution of the State of Texas, Vernon's Ann.St. Lot Owners alleged its ownership of certain lands in Dallas County, Texas, and its rights and interests in other lands adjacent thereto, plus its contractual rights to part of the sales price of adjacent lands. Lot Owners alleged that on July 2, 1938 the State took for public use, as a highway right-of-way, a strip of land containing 4.44 acres out of the lands owned by Lot Owners. The petition sought damages for such taking in three distinct particulars, namely: (1) The cash market value of the 4.44 acres of land actually taken; (2) damages to the remaining lands of Lot Owners which had no actual sales value but which did have a special value to Lot Owners, such damages to be measured by the difference in the special value of such remaining lands to Lot Owners immediately before, and immediately after, the taking; and (3) damages to the contractual and incorporeal rights of Lot Owners in adjacent lands which were injuriously affected by such taking.

Defendant State sued over against the County of Dallas, hereafter called 'County,' and Forest Lawn Burial Park, Inc., hereafter called 'Burial Park,' and the County sued over against Burial Park.

Upon trial to a jury, after Lot Owners had rested its case, the district judge sustained defendant's motion for an instructed verdict, and rendered a take nothing judgment against Lot Owners; from which judgment this appeal has been duly perfected.

Lot Owners brief seventeen points and the State, County and Burial Park seven counter points. They will be considered in groups as briefed.

Points 1 and 2 in substance assert error of the trial court in holding as a matter of law that Lot Owners, (1) had no rights, title or interest in the lands in controversy at the time of the taking of the right-of-way by the State; (2) that Lot Owners' rights, titles and interest in the lands involved here, originally acquired in 1933, were divested out of Lot Owners in a receivership proceeding in 1937, by Oliver Letot against E. E. Widner and Forest Lawn Cemetery and Mausoleum. Lot Owners was not a party to such suit. The points are countered (counter point 1), that the Letot receivership did not divest Lot Owners of its rights, titles and interest in the lands in controversy. The record material to these points shows that Oliver Letot in 1922 had title to all the land located in the cemetery and at that time conveyed such land to E. E. Widner for a total consideration of $30,000, payalbe $6,000 cash, four vendor's lien notes of $5,000 each and a fifth vendor's lien note for $4,000. Widner retained in the deed an express vendor's lien and also took a deed of trust to secure the notes. On December 18, 1922 Widner and wife conveyed the property to Forest Lawn Company,-now Forst Lawn Cemetery and Mausoleum-subject to Letot's vendor Lien and on April 24, 1923 Forest Lawn Company conveyed 'All of the walkways, parks, park reserves and private driveways in the burial park now or hereafter to be made, in accordance with the plat above described, and any and all other plats and dedications in the future to be made and filed, with reference to the burial park * * *' to appellant Lot Owners. (See note 1.)

In July 1935, Letot and wife filed cause No. 16260E, styled Oliver Letot et al. v. E. E. Widner et al., in the 101st District Court, for foreclosure of their vendor's lien by reason of default in payments thereon. The relief sought in the petition included the fixing of a vendor's lien on all cemetery land which had not theretofore been sold for burial purposes. The also sought the appointment of a receiver. The judgment, material here, recites that the principal, interest and attorney's fees are secured by vendor's lien expressly retained in the deed from Letot and wife to Widner; that Letot is entitled to priority and preference out of the proceeds of the sale of the property in payment of his claim, the balance after payment of such claims to be paid to the Forest Lawn Cemetery and Mausoleum. The judgment then ordered the property sold by the receiver at a private sale to a corporation duly organized for the purpose of engaging in and transacting the business of a perpetual care cemetery, or some other corporation committed or authorized to own and operate a prepetual care cemetery. '* * * and the conveyance thereof shall be made subject to and subordinate to the dedication of such property for cemetery purposes and to the rights and titles of all persons ownings lots or plots therein. * * *'

In April 1937, the receiver conveyed the cemetery property, including all lands herein claimed to be owned by Lot Owners, to Burial Park for $10,000 cash plus an obligation to make payments to the perpetual care fund. In July 1938, Burial Park conveyed the 4.4 acres of land involved here to the State for right of way purposes. In October 1948, Lot Owners recovered judgment in cause No. 11863 in a District Court of Dallas County against Burial Park for title and possession to certain lands described in the plat and dedication of the cemetery which included the 4.4 acres here involved, and 'All of the walkways, parks, park reserves and driveways * * *' in the Burial Park.

Appellee State asserts title on the theory that Lot Owners' rights and title were wiped out and destroyed by the receivership suit for the reason that such suit was based upon a vendor's lien and a reserved superior title in Letot through whom the State thereafter obtained its title. The Lot Owners contend that the holders of the original vendor's lien, when default occurred in the payment of the purchase money notes, were put to an election as to whether or not they would (1) sue for their debt and foreclosure of their lien; or (2) if the purchaser or those holding under it refused to deliver possession, sue in trespass to try title to recover the land; and when they elected to sue, as they did, for foreclosure of their lien and thereafter prosecuted such foreclosure suit to final judgment, such election was binding on them and they were thereafter forever barred from claiming the alternative right under their superior title. 43 T.J. 337, Vendors and Purchasers, sec. 195-7, inclusive, and 9 T.J. Ten Year Supp., p. 560-1, inclusive, and cases there cited.

The final judgment in the foreclsoure proceeding provides (cause 16260E): 'And no jury having been demanded, said cause and all matters of fact as well as of law in controversy therein were submitted to the court; and the court having heard the pleadings, the evidence and argument of counsel, finds and concludes as follows: That plaintiff Oliver Letot is entitled to recover of and from the defendant E. E. Widner the sum of $7,025.00, with interest thereon from the 2nd day of October 1932, at the rate of six per cent, together with ten per cent attorneys' fees as provided for in the notes described in plaintiffs' petition, and that the amount of said principal, interest and attorney's fees is secured by vendor's lien expressly retained in the deed from Oliver Letot and wife Inez Letot to E. E. Widner, dated October 2nd, 1922 and recorded in Vol. 970, page 49, of the Records of Deeds of Dallas County, Texas, upon the property described in plaintiffs' petition, except 37.1 acres thereof heretofore released by said plaintiff Oliver Letot; * * * That all the land described in plaintiffs' petition was dedicated for cemetery purposes by certificate and declaration of dedication executed by Forest Lawn Company, dated January 17th, 1923, and duly filed and recorded in the offices of the County Clerk of Dallas County, Texas, and recorded in Vol. 2, page 319, Map Records of Dallas, Dallas County, Texas, and that said 149.73 acres of land thereby became irrevocably dedicated to cemetery purposes, and that thereafter said Oliver Letot released from said vendor's lien 37.1 acres of said land set out and described in six releases duly recorded in the Deed Records of Dallas County, Texas, and that said released portion except 10 acres thereof sold to the City of Dallas, was surveyed and subdivided into sections, blocks, lots, avenues, walks and subdivisions, with descriptive names and numbers, and many lots have been sold and used for the permanent interment of the remains of deceased persons, and that the rights of the owners of said lots and burial plots have been permanently fixed and established and are entitled to be preserved and protected, and such rights shall in no manner be disturbed or affected by this judgment but shall be and remain inviolate; that said cemetery has been established, maintained, operated and conducted as a perpetual care cemetery, as now defined by law; that said defendant Forest Lawn Cemetery and Mausoleum has failed to comply with the requirements of law relative to perpetual care cemeteries and has failed to deposit in its perpetual care fund, as provided by law and under the provisions of its contracts with lot owners, the sum of $21,879.87 heretofore accrued, and that said Forest Lawn Cemetery and Mausoleum is indebted to said...