Hartel v. Dishman

• Decision Date: 19 December 1940
• Docket Number: No. 7488.,7488.
• Citation: 145 S.W.2d 865
• Parties: HARTEL et al. v. DISHMAN.
• Court: Texas Supreme Court

Page 865

145 S.W.2d 865

HARTEL et al. v. DISHMAN.

No. 7488.

Supreme Court of Texas.

December 19, 1940.

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

Suit in equity by H. E. Dishman against A. J. Hartel, Jr., and others, trustees of the George A. Barngrover trust estate, and another to enjoin a sale of land to satisfy a judgment for such estate against M. A. Van Auken and remove a cloud on plaintiff's title. A judgment for plaintiff was affirmed by the Court of Civil Appeals, 116 S.W.2d 891, and defendants bring error.

Reversed and remanded.

D. E. O'Fiel and W. R. Blain, both of Beaumont, for plaintiffs in error.

W. O. Bowers, Jr., of Beaumont, for defendant in error.

MOORE, Chief Justice.

Defendant in error, H. E. Dishman, as plaintiff, filed suit in the District Court of Jefferson County against A. J. Hartel, Jr., George A. Barngrover, and David E. O'Fiel, trustees of George A. Barngrover Trust Estate, and J. A. Mitchell, sheriff of Orange County, to enjoin the sale of 250 acres of land out of the Claiborne West League in Orange County, which were advertised to be sold under an order of sale issued out of the District Court of Jefferson County, dated the 8th day of May, 1936, upon a judgment recovered in a suit styled George A. Barngrover Trust Estate, by the above-named trustees, against M. A. Van Auken, a feme sole, on the 25th day of September, 1933, for the amount of two notes for $1,250 each, and for a foreclosure of a deed of trust against said land. Upon a plea of privilege, the case was transferred to the District Court of Liberty County. The parties will here be referred to as they appeared in the district court.

Plaintiff alleged that on April 15, 1936, he was the owner in fee simple of the land in question under a general warranty deed of that date, for a valuable consideration, from one Stuart R. Smith; that prior to the execution and delivery of that deed, he made an examination of the records of Orange County and that there was not then any record of a suit filed in that county by the Barngrover Trust Estate affecting said land, nor was there a lis pendens notice there filed of any such suit, nor was there an abstract of this judgment filed in the records of said county; and for which reasons he was not charged with notice of any right of the trust estate to said land. That there was recorded in the deed records of Orange County a deed of trust executed by Martha A. Van Auken to E. B. Pickett, Jr., trustee, dated August 17, 1927, and recorded in Volume O, pages 443-446, of the deed records of Orange County, to secure the payment of two notes of same date payable to the order of the trust estate for $1,250 each, due, respectively, August 27, 1928, and 1929, and which described the land in suit. That December 12, 1933, Martha A. Van Auken by warranty deed conveyed this land to plaintiff's grantor, Stuart R. Smith; that the judgment in such former suit was void because: (1) The petition did not allege the residence of the defendant; (2) failed to allege that the deed of trust was given to secure the payment of the notes; and (3) that the citation served upon the defendant stated that the land sought to be foreclosed on was situated in Jefferson County; and that by reason of all such matters the plaintiff at the time of his purchase was entitled to rely and did rely upon the fact that the records of Orange County disclosed that the notes were barred and the deed of trust lien extinguished by virtue of the limitation statutes of this State. Wherefore, plaintiff was entitled to said land free of any claim in behalf of said trust estate, and to a writ of injunction to restrain the sale of same by the sheriff of Orange County; and on final trial that the cloud so cast on plaintiff's title be removed.

The defendants answered by general demurrer and general denial.

The district court granted a temporary injunction against the sale of the property, and upon a trial had on the 4th day of March, 1937, rendered judgment in favor of the plaintiff, quieting the title to the premises in favor of the plaintiff "free and clear of any claims of the defendants" by virtue of said deed of trust, and free and clear of any claims of the defendants by virtue of the aforesaid judgment. Defendants appealed to the Court of Civil Appeals for the Ninth Supreme Judicial District at Beaumont, and that court on April 7, 1938, affirmed the judgment of the district court.

The Court of Civil Appeals in its opinion, 116 S.W.2d 891, declined to pass upon that portion of the judgment of the trial court which held void the judgment of the Barngrover Trust Estate against Mrs. Van Auken; but held that the judgment of the district court should be affirmed because defendants had not discharged the burden of proof which the court thought rested upon defendants to allege and prove that plaintiff purchased the land with notice of the filing of the Jefferson County suit; and cited in support of its opinion, Frazier v. Tankersley, Tex.Civ.App., 272 S.W. 212, and Marshburn v. Stewart, 113 Tex. 507, 254 S.W. 942. This court granted defendants' petition for writ of error.

The testimony upon the trial of the cause, so far as relevant, upon the part of the plaintiff, consisted of the following: (1) A recorded deed from Martha A. Van Auken to Stuart R. Smith, dated December 12, 1933, and which described this land according to the description shown in said deed of trust; and a deed from him to Westulane Corporation, dated February 13, 1934, and a reconveyance by the corporation to Smith, dated April 15, 1936; (2) a recorded deed to same premises from Smith to plaintiff, dated April 15, 1936; (3) a certified copy of the original petition in the suit of George A. Barngrover Trust Estate et al. v. M. A. Van Auken, a feme sole, which was filed in the District Court of Jefferson County July 28, 1932, and which will be more fully referred to and discussed; (4) an alias citation issued out of that court commanding the sheriff to summon M. A. Van Auken, a feme sole, to appear and answer plaintiff's petition in said suit, and the return of the officer thereon showing service upon her in said county September 13, 1932. This citation was in the usual form and contained the substance of plaintiff's petition, with the exception that it recited that the land sought to be foreclosed on was a part of the Claiborne West League in Jefferson County; and (5) a certified copy of the judgment recovered in said cause.

Defendants' only evidence was the aforesaid judgment.

The plaintiff did not testify, nor did he offer any testimony other than that of the deed records, as substantially set out above, and copies of the proceedings had in the former suit of Barngrover Trust Estate against Mrs. Van Auken. Hence, it appears that plaintiff neither alleged in his complaint nor proved that he or his vendor, Stuart R. Smith, were bona fide purchasers of the land in question without knowledge or notice of the suit which resulted in the judgment in question against Mrs. Van Auken.

We do not agree with the holding of the Court of Civil Appeals that defendants rested under the burden of alleging and proving that plaintiff purchased with notice of the filing of their suit against Mrs. Van Auken. The filing of that suit, as between the parties, stopped the running of the statutes of limitation as effectually as if the maker of the notes and the grantor of the deed of trust had formally renewed the debt and lien. Ater v. Knight, Tex. Civ.App., 218 S.W. 648, writ refused; Paddock v. Williamson, Tex.Civ.App., 9 S.W. 2d 452, writ refused. The plaintiff, claiming title through Mrs. Van Auken, could assert no better right to the land in suit than she could have asserted, unless he was a bona fide purchaser of the same without notice of the pendency of the suit. That, we think, results from the plain reading and effect of Articles 6640 and 6642, R.C.S. 1925, and Article 6643, Vernon's Ann.Civ. Statutes, Acts of the 40th Leg., 1927, p. 83, ch. 59. Article 6640 provides in substance that during the pendency of any suit involving the title to or interest in any real estate, or to enforce any lien thereon, either party may file a notice of the pendency of such suit with the county clerk of each county where such real estate or a part thereof is situated.

Article 6642 provides: "The pendency of such suit or action shall not prevent effective transfers or encumbrances of such real estate to a third party for a valuable consideration and without other notice, actual or constructive, by a party to the suit as against a subsequent decree for the adverse party, unless such notice shall have been properly filed under the name of the party attempting to transfer or encumber in the county or counties in which said land is situated."

Article 6643 provides: "All such notices of pendency shall be notice to all the world of their contents and that the suit or suits mentioned therein are pending, and such notices shall operate as soon as filed with the county clerk for record, as provided in this Chapter whether service has been had on the parties to said suit or not."

The effect of a pending suit before the passage of these statutes was to give constructive notice to all persons of the subject matter of the litigation; and no one, however innocent in fact, who purchased land in litigation from either party to the suit, was afforded protection, regardless of the fact that the purchaser may have paid full value, and that he neither knew nor had an opportunity to know of the pendency of the suit. This court in the case of City National Bank v. Craig, 113 Tex. 375, 257 S.W. 210, 212, construed our lis pendens statutes, and in doing so referred to the harshness of the rule as it existed at common law, which operated to divest persons of title to real estate or liens thereon acquired by them in good faith, and who had relied on the records of the office maintained to...