Goldenrod Finance Co. v. Ware

• Citation: 142 S.W.2d 614
• Decision Date: 18 July 1940
• Docket Number: No. 11005.,11005.
• Parties: GOLDENROD FINANCE CO. v. WARE.
• Court: Court of Appeals of Texas

142 S.W.2d 614

GOLDENROD FINANCE CO. v. WARE.

No. 11005.

Court of Civil Appeals of Texas. Galveston.

July 18, 1940.

Rehearing Denied August 1, 1940.

Appeal from District Court, Galveston County; Charles G. Dibrell, Judge.

Action by the Goldenrod Finance Company against Elbert Ware to remove cloud on title, wherein the defendant cross-complained to establish title to the realty involved. From an adverse judgment, plaintiff appeals.

Affirmed.

Lewis & Ingram and Mrs. Lynne Tamborello, all of Houston, for appellant.

C. M. Wilchar, Jr., and Sam G. Croom, both of Houston, for appellee.

GRAVES, Justice.

This appeal is from a judgment of the 56th District Court of Galveston County, sitting without a jury, wherein the appellee, who was the defendant and cross-plaintiff below, was awarded the title to and possession of Lots 59 and 60 in Section 13 of the I. & G. N. Ry. Survey in Galveston County, comprising 20 acres of land, against the appellant, who was plaintiff and cross-defendant below, and wherein the appellant, as such plaintiff, was awarded title to and possession of the west 3/4 of Lot 58 in such Survey, containing 7½ acres, but was denied any recovery upon its plea of damages against the defendant.

At appellant's request and pursuant to statutory requirement, the learned trial court filed, as in support of its judgment, findings of fact and conclusions of law that are so full and clear, in giving not only a comprehensive statement of the nature and result of the suit there, but in also containing such a controlling and correct statement of the issues of law presented upon the appeal here, that they are thus, in material substance, fully quoted:

"It was agreed that Walter E. Fruit and Julian E. Fruit was the common source of title.

"Plaintiff's Title.

"Plaintiff introduced in evidence the following instruments.

"G. W. Deed from Fruit and Fruit to W. B. Lewis covering the land involved and other lands, dated April 25, 1928, filed for record May 21, 1928, and recorded in Book 419, p. 133, deed records of Galveston County. Consideration $2000.00 cash.

"G. W. Deed from W. B. Lewis and wife to J. E. Sawhill, covering the same land conveyed by Fruit and Fruit to Lewis, dated April 28, 1928, filed for record May 21, 1928, and recorded in Book 419, page 133. Consideration $20,000.00, being $10,000.00 in cash and the execution and delivery of two promissory vendor's lien notes for the sum of $5000.00 each, payable to vendor W. B. Lewis.

"Sale and transfer from W. B. Lewis and wife to The Gray Realty Company of the two $5000.00 vendor's lien notes described in deed from Lewis and wife to J. E. Sawhill; dated April 28, 1928, filed for record May 21, 1928, and recorded in Book 410, page 456. Consideration $10,000.00 cash. The transfer reciting that it conveyed to The Gray Realty Company `the said notes and said lien and all liens and titles held by them in and to the said land.'

"Sale and transfer from Gray Realty Company to R. E. R. Lloyd and wife of the two $5000.00 vendor's lien notes in question, dated May 4, 1928, filed for record December 29, 1928, and recorded in Book 415, page 629. Consideration $10,000.00 cash. The transfer reciting that it conveyed to Lloyd and wife said notes together with all the contract lien, vendor's lien, rights, equities, titles and interest in said land, which Gray Realty Company had by virtue of being the legal holder and owner of said notes.

"Lis pendens notice in cause No. 147,489, entitled T. A. Smith v. W. B. Lewis et al., pending in the District Court of Harris County, Texas; filed in the office of the County Clerk of Galveston County, Texas, on May 31, 1928, and recorded in Book 1, page 114.

"Lis pendens notice in cause No. 147,489, entitled T. A. Smith v. W. B. Lewis et al., pending in the District Court of Harris County, Texas; filed in the office of the County Clerk of Galveston County, Texas, on November 15, 1928, and recorded in Book 1, page 120.

"Certified copy of final judgment rendered by the District Court of Harris County, Texas, in said cause No. 147,489, entitled T. A. Smith v. W. B. Lewis et al., on the 4th day of November, 1930.

"Plaintiff also introduced in evidence certified copies of various pleadings filed in said cause No. 147,489, T. A. Smith v. W. B. Lewis et al., consisting of the following:

"Plaintiff Smith's Original Petition filed May 29, 1928.

"Original answer of Defendant J. E. Sawhill, filed June 29, 1928.

"Original answer of Defendant W. B. Lewis and Cross-action wherein he impleads W. C. Gray and Gray Realty Company, filed August 1, 1928.

"Plaintiff Smith's First Amended Original Petition filed March 16, 1929.

"Original Answer of Defendants W. C. Gray and wife and Gray Realty Company, filed April 15, 1929.

"Original Answer of Defendants R. E. R. Lloyd and wife, filed July 8, 1929.

"Second Amended Original Petition (?) of M. J. Huggins, filed Feb. 25, 1930. (M. J. Huggins evidently intervened in the cause. This pleading is styled her Second Amended Original Petition filed in lieu of all other pleadings theretofore filed by her in said cause; Plaintiff's attorney stated in open court to the trial court that they could locate no other or previous pleading by M. J. Huggins among the papers in cause No. 147,489).

"Plaintiff Smith's Third Amended Original Petition, filed July 12, 1930.

"Answer of Defendants R. E. R. Lloyd and wife, filed November 4, 1930. (This is the First Amended Original Answer for the Defendants Lloyds, but it is not so denominated).

"Certified copy of a temporary restraining order granted in cause No. 147,489, on May 29, 1928.

"Certified copy of a temporary injunction granted in cause No. 147,489 on June 2, 1928.

"Certified copy of a judgment rendered by the District Court of Harris County, Texas, in cause No. 147,509, entitled Roene Cage et al. v. W. B. Lewis et al., on July 18, 1928, wherein judgment was rendered in favor of Roene Cage and husband against W. B. Lewis and J. E. Sawhill for $4570.21, with foreclosure of a vendor's lien on certain property not involved in this suit.

"Execution and order of sale issued on said judgment, issued Sept. 1, 1928, together with Sheriff's return thereon showing the same to have been executed on September 6, 1928, by the sale of the property described in said order of sale, and resulting in a credit on said judgment of $2,932.35.

"Certified copy of the abstract of the judgment aforesaid showing same to have been filed for record in the office of the County Clerk of Galveston County, Texas, on September 29, 1928. The testimony of the County Clerk of Galveston County was that said abstract of judgment was properly indexed as against defendants W. B. Lewis and J. E. Sawhill and in favor of plaintiffs Cage and wife.

"Certified copy of Pluries Execution issued by the District Clerk of Harris County on the judgment aforesaid, issued October 6, 1934, to the Sheriff of Galveston County, commanding him to make out of the property of Defendants Lewis and Sawhill, the balance due on said judgment, to-wit, $1,637.86, together with the Sheriff's return thereon, showing that said pluries execution was executed on October 10, 1934, by the levy upon and sale of the property involved in the instant suit, to plaintiff Roene Cage. The levy and sale reciting that it was all interest owned in said property by defendants Lewis and Sawhill on October 10, 1934.

"Alias execution issued on said judgment to Sheriff of Harris County on October 3, 1928, returned `not executed'.

"Sheriff's deed to Roene Cage, dated December 11, 1934, recorded June 11, 1936, conveying to her all title and interest in said property which the defendants Lewis and Sawhill had on October 10, 1934.

"Quit-Claim deed from Roene Cage to M. J. Huggins, dated March 6, 1939, covering the land involved and which she purchased at said sheriff's sale. G. W. Deed from M. J. Huggins to Goldenrod Finance Company conveying the land involved in this suit, dated February 15, 1937, filed for record May 5, 1937."

By virtue of the foregoing instruments and muniments of title, plaintiff Goldenrod Finance Company claims to deraign good and superior title to the land involved from the agreed common source, Fruit and Fruit.

Plaintiff also introduced in evidence the following instruments for the limited purpose of showing the cloud that defendant has cast upon its title and which it sued to remove:

"Original petition filed in cause No. 44,821, entitled R. E. R. Lloyd et al. v. J. E. Sawhill, in the District Court of Galveston County, Texas.

"Certified copy of final judgment rendered in cause No. 44,821, entitled R. E. R. Lloyd, et al. v. J. E. Sawhill, by the District Court of Galveston County, Texas, on January 12, 1929, whereby all title to the land involved in this suit was divested out of defendant J. E. Sawhill and title and right of possession vested in plaintiffs R. E. R. Lloyd and wife.

"G. W. deed from R. E. R. Lloyd and wife to J. M. Lowry conveying the land involved, dated February 14, 1929, filed for record March 7, 1929, and recorded in Book 429, page 456; recited consideration —$15,000.00 cash.

"G. W. deed from J. M. Lowry to J. E. Light conveying the land involved, dated March 21, 1929, filed for record April 29, 1929, and recorded in Book 423, page 505. Consideration—$10.00 and other valuable considerations.

"G. W. deed from J. E. Light to J. L. Grice conveying the land involved, dated April 12, 1929, filed for record April 26, 1929, and recorded in Book 427, page 469; consideration—$10.00 and other valuable considerations.

"G. W. deed from J. L. Grice to O. C. Baker conveying the land involved, dated August 10, 1929, filed for record August 14, 1929, and recorded in Book 431, page 537; consideration—$10.00 and other valuable considerations.

"G. W. deed from O. C. Baker to defendant herein, Elbert Ware, conveying the land involved, dated November 30, 1930, filed for record August 19, 1931, and recorded...