Glover v. Donohoo, 4466.

• Decision Date: 18 July 1946
• Docket Number: No. 4466.,4466.
• Citation: 197 S.W.2d 531
• Parties: GLOVER et al. v. DONOHOO et al.
• Court: Texas Court of Appeals

197 S.W.2d 531

GLOVER et al. v. DONOHOO et al.

No. 4466.

Court of Civil Appeals of Texas. El Paso.

July 18, 1946.

Rehearing Denied Sept. 26, 1946.

Appeal from District Court, Midland County; Cecil C. Collings, Judge.

Action in trespass to try title to recover realty by H. W. Donohoo and others against Martin Glover, and others, wherein defendants by way of cross action over against the plaintiffs sought to foreclose a judgment lien against the realty and to which cross action H. B. Dunagan, Sr., H. B. Dunagan, Jr., and Clint Dunagan were made cross defendants. The cross defendants filed a disclaimer. From judgment in favor of plaintiffs and against defendants on their cross action, the original defendants appeal.

Judgment affirmed.

Stubbeman, McRae & Sealy, of Midland, and Kerr & Gayer, of San Angelo (William B. Neely, of Midland, of counsel), for appellants.

Klapproth & Hamilton, of Midland, for appellees.

PRICE, Chief Justice.

This is an appeal from a judgment of the District Court of Midland County. H. W. Donohoo and Paul Houston sued Martin Glover Company, Midland National Bank and Magnolia Petroleum Company in trespass to try title to recover lots 1, 2, 3, 4, 5 and 6 in Block D, Garrett Place Addition to the town of Midland. The petition was in the ordinary form in trespass to try title, save that title was likewise asserted under the three year statute of limitation. The named defendants each and all filed answers and each plead by way of cross action over against the plaintiffs each seeking to foreclose a judgment lien against the property. To such cross action H. B. Dunagan, Sr., H. B. Dunagan, Jr., and Clint Dunagan were made cross defendants. The cross defendants filed a disclaimer.

The trial was to the court, without a jury. Judgment was rendered in favor of Donohoo and Houston against the corporate defendants and against defendants on their cross action seeking foreclosure of judgment liens. The original defendants have duly perfected this appeal from the judgment refusing a foreclosure of their alleged lien. The plaintiffs will hereinafter be designated as such and the original defendants as appealing defendants.

On motion of the appealing defendants the court filed findings of fact and conclusions of law. Said defendants excepted to these findings, and excepted to the court's refusal to make additional findings. Among other findings made were that the plaintiffs were entitled to recover under the three years statute of limitations and as bona fide purchasers; that H. P. Dunagan, Sr., the judgment defendant in the foreclosures sought never had any title to the property involved.

There is no material conflict in the testimony, although different inferences might be drawn therefrom.

It was agreed that the common source of title was Kate B. Elkin, the wife of W. B. Elkin. Plaintiffs to show title introduced in evidence a deed dated August 17, 1937, from Mrs. Kate B. Elkin and husband to Anna Faye Neill to the land in controversy. Another deed dated June 27, 1939, from the same grantors to the same grantees ratifying and confirming the deed of August 17, 1937; a deed from Anna Faye Neill and husband to Armo Spears dated January 27, 1942, filed for record January 29, 1942; a deed from Armo Spears and wife to plaintiffs dated April 25, 1945, filed for record April 27, 1945.

Appealing defendants do not claim title and possession of the property involved, but each assert a judgment lien against the property. Each had a judgment against H. B. Dunagan, Sr. These judgments, except that of the Magnolia Petroleum Company, were duly abstracted in Midland County prior to August 17, 1937. The judgment of the Magnolia Petroleum Company was duly abstracted in Midland County April 18, 1940. In any event it was so assumed in the oral argument.

The theory of the appealing defendants is that the property in controversy was the community property of H. B. Dunagan, Sr., and his deceased wife, Mary Jane Dunagan, and that by virtue of the filing of the abstracts their judgments in Midland County each became a lien against the property.

Mary Jane Dunagan died March 11, 1938. She was survived by her husband, H. B. Dunagan, Sr., and the following children: H. B. Dunagan, Jr., Anna Faye Neill, and Clint Dunagan. Anna Faye Neill was the remote grantor of plaintiffs, and the conveyances to her form the first link in plaintiff's chain of title from the common source.

The appealing defendants offered in evidence the judgment and pleadings in cause No. 3118 on the docket of the District Court of Midland County, entitled Anna Faye Neill, et vir, v. W. J. Wooster, et al. In this cause Anna Faye Neill, joined by her husband, sought an injunction restraining W. J. Wooster from causing the Sheriff to sell the property here involved under an execution from the District Court of Howard County against H. B. Dunagan, Sr. In the amended petition of Anna Faye Neill the following allegations appeared:

"I.

"Plaintiff alleges that on or about the 17th day of August, A. D. 1937, Kate B. Elkin, joined pro forma by her husband, W. B. Elkin, as seller, contracted to sell to Mary Jane Dunagan, joined by her husband, H. B. Dunagan, as buyer, all of Lots 1, 2, 3, 4, 5 and 6, Block D, Garrett Place Addition to the Town of Midland, Midland County, Texas, on the terms of Two Hundred ($200.00) Dollars and the balance of Four Hundred ($400.00) Dollars paid at the rate of Fifty ($50.00) per month on or before the 20th day of each month thereafter with 8% interest. That it was agreed between the parties that a deed would be executed by seller and husband and placed in escrow in the Midland National Bank of Midland, Texas, to be delivered to buyer when escrow agent had received the total consideration as recited in said written contract and escrow agreement.

"That attached to said contract and escrow agreement was an executed deed from Kate B. Elkin and husband W. B. Elkin to Mary Jane Dunagan as her separate estate conveying all of the above described lots.

"II.

"Plaintiff alleges that the above described deed was never delivered to Mary Jane Dunagan, but that before said contract was paid out by Mary Jane Dunagan, that the said Mary Jane Dunagan died; that a few days prior to her death Mary Jane Dunagan, joined by her husband, H. B. Dunagan, gave all of her interest in and to the above described contract to this plaintiff herein, who is a daughter of Mary Jane Dunagan and H. B. Dunagan, and thereafter this plaintiff finished paying said executory contract. That B. C. Girdley was the agent who sold the above described property to plaintiff's mother and upon final payment for said property the said B. C. Girdley was requested to procure the proper conveyance from Kate B. Elkin and husband to this plaintiff; that the said B. C. Girdley did procure the conveyance from Kate B. Elkin and husband to this plaintiff and the same was filed of record in Volume 61, pages 167-168, of the Deed Records of Midland County, Texas; that said conveyance should have been made to this plaintiff on the 14th day of March, A. D. 1938, but for some reason unknown to plaintiff herein said deed shows to be executed on the 17th day of August, A. D. 1937".

In the answer of H. B. Dunagan, Sr., H. B. Dunagan, Jr., and Clint Dunagan, the following appeared:

"III.

"Cross defendants H. B. Dunagan, H. B. Dunagan, Jr. and Clint Dunagan specifically disclaim any right, title, interest or estate in and to the real estate described in paragraph two, subdivision `d', of cross plaintiff's original petition, in favor of Anna Faye Neill. And in this connection, allege that said property so described was the separate property of Mary Jane Dunagan during her lifetime and was given to Anna Faye Neill by Mary Jane Dunagan prior to her death."

The complete record in the case seems to have been offered in evidence by the appealing defendants, without reservation.

In the suit Wooster filed a cross action in which he sought foreclosure of a judgment lien arising by virtue of his levy of execution on the property, and by virtue of the filing of an abstract of judgment in Midland County. He made H. B. Dunagan, Sr., H. B. Dunagan, Jr., and Clint Dunagan additional parties defendant to his cross action. His judgment was against H. B. Dunagan, Sr. He attacked the deed dated August 17, 1937, from Mrs. Elkin to Mrs. Neill, as a forgery, and averred the property was the community property of Mr. and Mrs. Dunagan and subject to the lien of his judgment. H. B. Dunagan, Sr., H. B. Dunagan, Jr., and Clint Dunagan disclaimed any interest in the property. The case was tried to a jury, the verdict found that the property was the community property of Mary Jane Dunagan and her husband; that some of the...