Goode v. Davis

• Decision Date: 01 December 1939
• Docket Number: No. 13992.,13992.
• Parties: GOODE et al. v. DAVIS et al.
• Court: Texas Court of Appeals

135 S.W.2d 285

GOODE et al. v. DAVIS et al.

No. 13992.

Court of Civil Appeals of Texas. Fort Worth.

December 1, 1939.

Rehearing Denied January 12, 1940.

Appeal from District Court, Wise County; J. E. Carter, Judge.

Suit by K. O. Goode and others against W. C. Davis and George Dickenson, in trespass to try title. From an adverse judgment, the plaintiffs appeal.

Judgment affirmed.

A. B. Cates, of Decatur, for appellants.

C. T. Gettys, of Decatur, for appellees.

SPEER, Justice.

Appellants, K. O. Goode, R. S. Goode, Georgie Myers, joined by her husband, L. M. Myers, Mae Moore, joined by her husband, Milton Moore, Estelle Elder, joined by her husband, R. C. Elder, Pauline Andrews, joined by her husband, J. B. Andrews, Gladie Flickinger, joined by her husband, H. E. Flickinger, sued appellees, W. C. Davis and George Dickenson, in trespass to try title, seeking to recover about 122 acres of land in Wise County, Texas, a part of the Asa Hill Survey, describing the land by metes and bounds.

Appellees answered with general denial, not guilty and by special pleas, showing title in them under trustee's deed, sheriff's sale under tax suit foreclosure and by limitations.

Appellants replied with special exceptions, all of which were overruled by the court, which action is assigned as error. In the view we take of this appeal, it is unnecessary for us to discuss the merits of the answer or the ruling of the court on the special exceptions.

When appellants (plaintiffs) had concluded the introduction of their testimony, appellees (defendants) moved for judgment. No jury having been demanded, the court sustained appellees' motion and entered judgment against appellants and in favor of appellees. From this judgment the appeal has been perfected.

To show common source of title, appellants introduced in evidence a deed from J. H. Foster and wife, conveying the land to R. F. Goode, dated April 12th, 1917. R. F. Goode was shown to be the father of plaintiffs; a first lien deed of trust by Emma Goode, surviving wife of R. F. Goode, deceased, to F. W. Bartlett, Trustee, dated December 5th, 1924, against the land, securing the payment of a principal note for $1,000; and a second lien deed of trust between the same parties and of same date of the one last mentioned, securing $200, payable in ten annual installments of $20 each during the life of the Principal $1,000 debt secured by the first lien deed of trust. Proof was made that R. F. Goode died intestate on February 15th, 1922, and that Emma Goode died intestate on July 11th, 1926, and that certain appellants were their only heirs and that other appellants were assignees of heirs; that as such, appellants owned the title of R. F. Goode and his wife, Emma Goode, both deceased. Appellants also put in evidence a deed from John G. Gose, substitute trustee, to B. L. Bartlett, dated February 7th, 1928; also a deed from B. L. Bartlett to I. N. Elrod and a deed from I. N. Elrod to W. C. Davis (appellee) of date January 10th, 1934.

The agreed statement of facts and stipulations further shows that appellants introduced in evidence a judgment of the district court of Wise County, entered on August 3rd, 19132 (1932), in favor of the State of Texas, foreclosing a tax lien on the land against several parties defendant, including all of appellants except Gladie Flickinger and her husband. Among those defendants named is Mary E. Cunningham, shown to be the grantor of Gladie Flickinger. An order of sale on the foregoing judgment was issued returnable November 28th, 1932. The return made by the officer shows that he advertised the land for sale in the manner and for the time required by law, to be sold on December 6th, 1932, it being the first Tuesday in said month; that on said date, between the hours of 10:00 o'clock A.M. and 4:00 o'clock P.M., he did sell the land at public outcry, at the court house door, to the highest and best bidder. A deed was made by the sheriff to E. H. Baumgaertner and Ben Johnson, the purchasers at said sale; Baumgaertner and Johnson deeded the land to I. N. Elrod prior to the date of the deed from Elrod and wife to appellee, W. C. Davis, shown above. The foregoing, together with other evidence and stipulations which we consider unnecessary to relate, constitutes appellants' evidence of title. Appellees introduced no testimony, but rested when appellants finished. Resulting, as above shown, in the court sustaining appellees' motion for judgment.

The rule of law by which appellants' rights are controlled in trespass to try title cases, such as this, is laid down in 41 Tex.Jur., page 492, sect. 30, in this language: "The defendant being in possession of the land, is entitled to judgment against the plaintiff unless the latter presents prima facie proof of title. Possession of the premises by the defendant is deemed to give him a `right against the plaintiff' until the latter has shown title to the land. The burden is cast upon the plaintiff to establish title by an affirmative showing and by a preponderance of the evidence."

The record in this case shows that appellants are the heirs or the grantees of the heirs and only heirs of R. F. Goode and his wife, Emma Goode, both deceased. It also shows that the Goodes are the common source of title between the parties to this suit. Common source may be shown either by the pleadings of the parties, by agreements and stipulations or by proof upon the trial. Luckel v. Sessums, Tex.Civ. App., 71 S.W.2d 579, writ dismissed; Simmons Hardware Co. v. Davis, 87 Tex. 146, 27 S.W. 62; Curdy v. Stafford, 88 Tex. 120, 30 S.W. 551; Moran v. Stanolind Oil & Gas Co., Tex.Civ.App., 127 S.W.2d 1012, writ dismissed, correct judgment. When common source is shown, neither party need go farther back to establish a chain of title. Appellants in this case had a right to introduce testimony upon the development of their prima facie case, to show the source of such title as appellees had, for the purpose of establishing a common source. But they did not stop at this; they proved by a series of instruments which, if valid, placed title in appellees and divested themselves of the title.

Insofar as is necessary to here state, the first lien deed of trust introduced in evidence by appellants, was made in renewal of and to secure an indebtedness owing by R. F. and Emma Goode, evidenced by an obligation made by them on December 28th, 1917. The instrument in evidence recites these facts, and that the beneficiary in the new obligation was subrogated to that old debt and the lien securing same. The second lien deed of trust is a part of the contract out of which grew the first lien, and we shall treat it as such.

In recognition of the foregoing principles of our established law, appellants claim that the two deeds of trust show upon their faces that the indebtedness secured bore usurious interest; that the second deed of trust, under which a sale was made by the substitute trustee and under which sale appellees claim, was given to secure usurious interest on the principal obligation, and the sale made thereunder was therefore void; hence the substitute trustee's deed passed no title to appellees' grantor and that of course appellees took no title under the conveyance to them.

Whether or not the two deeds of trust, when construed together, secured a usurious contract is the determining factor in this appeal, if we disregard for the moment the apparent title shown in appellees under the tax judgment and sheriff's sale.

In cases of this kind, where two deeds of trust are executed contemporaneously, the first to secure a principal indebtedness and recited interest, and the second given to secure another part of the interest, both must be considered as representing a single transaction from which we may determine whether or not the two, when read as one contract, taint the transaction with usury. This is true for the reason the real intent of the parties may thus be ascertained. If the terms of one when considered alone should disclose the vice, and the other construed in connection therewith should cause it to mean something else, that construction should be given the contract as a whole that would render it valid rather than void. Nevels v. Harris, 129 Tex. 190, 102 S.W.2d 1046, 109 A.L.R. 1464; Foley v. Farm & Home Savings & Loan Ass'n, Tex.Civ.App., 81 S.W.2d 231, and cases there cited; Cowan v. Wilson, Tex.Civ.App., 85 S.W.2d 823; Walker v. Temple Trust Co., Tex.Civ.App., 60 S.W. 2d 826, affirmed by Supreme Court, 124 Tex. 575, 80 S.W.2d 935; 10 Tex.Jur., page 286, sect. 166.

The pertinent parts of the two deeds of trust to which we must look to ascertain if they render the instruments open to the vice of usury should be shown, and we quote the purpose clause from the first instrument as follows:

"To secure and enforce payment of one certain promissory note in the sum of $1,000.00 for money borrowed, executed by Emma E. Goode and R. S. Goode, and due as follows: $1,000.00 on the first day of January, 1935, dated December 5th, 1924, and payable to the order of J. W. Bartlett, the party of the third part, with interest thereon from January 1st, 1925, until maturity at the rate of six per cent per annum, and with interest thereon from maturity until paid at the rate of ten per cent per annum, said interest before maturity being payable annually on the first day of each January of every year, according to the terms of the interest coupons attached to said note, each bearing ten per cent interest per annum from maturity until paid. * * *

"The note secured hereby is given in renewal and extension of a note for like amount dated December 28th, 1917, made by R. F. Goode and Emma E. Goode to the order of J. W. Bartlett and secured by a deed of trust on the above described land. * * * The beneficiary herein is hereby subrogated to all the rights, powers and equities of the beneficiary in said deed of trust and of the legal holders and owners of...