French v. May

• Decision Date: 31 July 1972
• Docket Number: No. 727,727
• Citation: 484 S.W.2d 420
• Parties: Lew D. FRENCH, Jr., et al., Appellants, v. James D. MAY, Appellee.
• Court: Texas Court of Appeals

Page 420

484 S.W.2d 420

Lew D. FRENCH, Jr., et al., Appellants, v.James D. MAY, Appellee.

No. 727.

Court of Civil Appeals of Texas Corpus Christi.

July 31, 1972.

Rehearing Denied Sept. 7, 1972.

Pollan & Nicholson, John T. Nicholson, Rosenberg, for appellants.

DeLange, Hudspeth, Pitman & Katz, M. Marvin Katz, Houston, for appellee.

OPINION

BISSETT, Justice.

This is an appeal from a judgment wherein the plaintiff recovered a certain sum of money from the defendant, and title to and possession of realty was vested and quieted in third party defendants, who were brought into the case by the original defendant and third partyplaintiff by virtue of pleadings in the nature of trespass to try title.The validity of the foreclosure of each of two deeds of trust is also presented by the appeal.The realty in controversy is a commercial lot situated in the City of El Campo, Wharton County, Texas.

James D.May, as plaintiff, on December 16, 1970, filed suit against Lew D. French, Jr. and Jesse D. Hunt, as defendants, to recover the balance due on a second lien note executed by them as part of the purchase price for a parcel of land; for interest, delinquent taxes and trustee's expenses which plaintiff alleged that he paid for the defendants on a first lien note for said property, originally executed by him and assumed by the defendants; and for damages for the conversion of certain personal property located on said parcel of land.

On May 20, 1971, the defendantLew D. French, Jr., as third partyplaintiff, filed a third party action against Bill Humphrey, Trustee, Mrs. Avis Jones, Harvey Jaksch and Ray Allen Jaksch, to recover the title and possession of the land involved and the rental value thereof for the time that possession of same had been withheld from him.

After a trial before the court without a jury, judgment was entered (a) that plaintiff James D.May recover $5,154.89, together with interest, from the defendant French; (b) that plaintiff James D.May take nothing against the defendant Hunt; (c) that the third partyplaintiff French take nothing against the third party defendantsBill Humphrey, Trustee, Harvey Jaksch, Ray Allen Jaksch and Mrs. Avis Jones; (d) that the fee simple title and possession of the premises is vested and quieted in Harvey Jaksch and Ray Allen Jaksch, subject only to the lien held by Mrs. Avis Jones; (e) that the trustee's deed from Geo. P. Willis, III, Trustee, to James D.May is void; (f) that all relief not expressly granted was denied; and (g) that all costs be taxed against French.

Lew D. French, Jr., hereinafter called appellant has appealed those portions of the judgment that are summarized in clauses (a), (c), (d), (f) and (g) in the paragraph immediately preceding this paragraph.Harvey Jaksch and Ray Allen Jaksch are hereinafter called appellees, third party defendants, and sometimes 'Jaksch'.

Findings of fact and conclusions of law were filed by the trial court.Appellant does not attack any fact finding in his brief by a point of error.He does, however, complain of some of the conclusions of law and of certain portions of the judgment that was entered.

The property in controversy was conveyed by Mrs. Avis Jones to appellee May, by deed dated July 25, 1969.Part of the consideration paid for said land was the execution by May of his promissory note in the original principal sum of $25,000.00, payable to Mrs. Jones, bearing interest at the rate of 7% Per annum, and payable in 5 annual installments of $5,000.00 each, plus accrued interest, the first installment becoming due and payable on July 28, 1970.Said note contained the usual default, acceleration, and attorney's fees clauses; it was secured by the vendor's lien retained in the aforesaid deed, and by a deed of trust of even date therewith, executed by May to Bill Humphrey, Trustee, covering said property.

Thereafter, by deed dated October 27, 1969, James D.May conveyed said property to appellantLew D. French, Jr. and Jesse D. Hunt for $31,000.00, payable as follows: (a) $1,500.00 in cash; (b) the execution by appellant and Hunt of a note dated October 18, 1969, in the original principal sum of $4,500.00, payable to James D.May in quarterly installments of $1,125.00 each, plus interest at the rate of 8 1/2% Per annum, the first installment becoming due on February 15, 1970.Said note contained the usual default, acceleration and attorney's fees clauses, and was secured by the vendor's lien retained in the deed, and by a deed of trust of even date therewith, executed by the makers to Geo. P. Willis, III, Trustee, covering said property, but which liens were made secondary to the liens then outstanding in favor of Mrs. Jones; (c) the assumption by appellant and Hunt of the first lien note in the sum of $25,000.00, already mentioned and described.

Neither French nor Hunt paid the first installment of principal or accrued interest, to Mrs. Jones on the $25,000.00 note when the same became due on July 28, 1970, but wholly made default thereon.Shortly thereafter, Mrs. Jones accelerated the maturity of said note, as permitted therein, and called upon and requested the named trustee, Bill Humphrey, to enforce the first lien deed of trust securing the payment thereof, and to conduct a forelosure sale pursuant to the terms of the deed of trust.

After such default and the acceleration of the maturity of said note, but prior to the trustee's sale of said property, May paid to Mrs. Jones the accrued interest due on the note, as well as taxes that were then delinquent on the land.

On September 1, 1970, after duly posting the required notices, the property was struck off and sold by the trustee at public sale to the appellees Jaksch on their bid of $26,000.00, that being the highest bid at such sale.On September 2, 1970, Bill Humphrey, as trustee, conveyed the property to said purchasers.This deed recited that the vendees were the highest bidders, and that the consideration was: (a) $6,000.00 in cash; and (b) the assumption by the said purchasers of the certain promissory note 'due to Mrs. Jones in the principal sum of $25,000.00 secured by a deed of trust recorded in Volume 165, page 198 of the Wharton County deed of trust records'.The deed further stated that 'the balance of said note is $20,000.00'.

The appellant appeared in person at the foreclosure sale held on September 1, 1970 but did not bid, nor did he object to the sale or the manner in which it was conducted.

At the trial of the case, which commenced on September 27, 1971, the appellees Jaksch, without objection by anyone, introduced into evidence an affidavit of Mrs. Jones whereby she stated that the sale of the property by Bill Humphrey, Trustee, to the appellees Jaksch for $26,000.00, payable in the manner already mentioned, was acceptable to her and that she was willing to look solely to them for the payment of the balance owing on the note should the 'court rule that the foreclosure sale was valid and that Harvey Jaksch and Ray Allen Jaksch are the owners of the subject property.'

French and Hunt paid the first two installments due on the $4,500.00 note but defaulted in the payments due thereon on August 15, 1970 and November 15, 1970, respectively.

After French and Hunt had defaulted in the payment of the third installment due on the $4,500.00 note, May accelerated the maturity of said note and called upon Geo. P. Willis, III, Trustee, to enforce the second lien deed of trust securing the payment of said note and to conduct a foreclosure sale in accordance with the terms of the deed of trust.The property was sold by the trustee at public sale on September 7, 1971 to the appellee May on his bid of $50.00, that being the highest bid at such sale.Geo. P. Willis, III, Trustee, then conveyed the property (subject to, but not assuming any prior indebtedness) to May, who, by deed dated September 18, 1971, conveyed the property to the appellees Jaksch.

It is undisputed that French converted to his own use certain personal property belonging to May and that the value of such property is $500.00.

The appellees Jaksch paid the second installment of $5,000.00 to Mrs. Jones, together with accrued interest on the balance of the note due thereon shortly before July 28, 1971.

Appellant, in his first point, complains that 'the trial court erred in rendering judgment for James D.Mayagainst appellant in the sum of $5,154.89 with interest, for the reason that the same included $2,503.89 claimed to have been paid by James D.Mayfor the benefit of appellant on the note payable to appelleeMrs. Avis Jones.'He argues that the uncontradicted evidence shows that May paid the same to Mrs. Jones so that she would not foreclose her deed of trust lien, and that she accepted same and credited it on the note.The record conclusively shows that May paid Mrs. Jones $2,003.89, not $2,503.89.

The appellee May sued appellant for recovery of money on three different theories: (a) the balance due on the accelerated second lien note; (b) the value of certain items of personal property on the premises that were owned by May and converted by appellant; and (c) the past due interest on the first lien note and delinquent taxes on the land which he paid to Mrs. Jones, as aforesaid.

It is undisputed that at the time of trial appellant owed James D.May a total of $2,651.00 on the $4,500.00 note, as follows: (a) $2,250.00 principal; (b) $160.00 interest; and (c) $241.00 attorney's fees.And, the evidence also establishes that certain items of personal property were converted by appellant to his own use which had a value of $500.00.The point of error does not complain of the judgment insofar as it awards the monies due on the amount that the evidence shows to be due on the $4,500.00 second lien note, or the amount awarded for the conversion of personal property, aggregating $3,151.00.The statement and argument under the point makes no mention of them.The point of...