Hollums v. Hicks

• Decision Date: 20 March 1944
• Docket Number: No. 5588.,5588.
• Citation: Hollums v. Hicks, 179 S.W.2d 824 (Tex. App. 1944)
• Parties: HOLLUMS et al. v. HICKS.
• Court: Texas Court of Appeals

179 S.W.2d 824

HOLLUMS et al. v. HICKS.

No. 5588.

Court of Civil Appeals of Texas. Amarillo.

March 20, 1944.

Rehearing Denied April 24, 1944.

Appeal from District Court, Floyd County; Alton B. Chapman, Judge.

Trespass to try title by Maud E. Hollums, joined by her husband, John A. Hollums, against I. W. Hicks, wherein defendant brought a cross-action. From a judgment on an instructed verdict for defendant, plaintiffs appeal.

Affirmed.

W. E. Grimes, of Floydada, and Monning & Singleton, of Amarillo, for appellants.

E. L. Klett, of Lubbock, for appellee.

PITTS, Chief Justice.

Appellant, Maud E. Hollums, joined by her husband, John A. Hollums, filed suit September 22, 1941, in trespass to try title against appellee, I. W. Hicks, who answered and filed a cross-action in trespass to try title. The trial court peremptorily instructed the jury to return a verdict against appellants and for appellee and rendered judgment accordingly, from which judgment appellants perfected their appeal to this court.

Appellants pleaded that on November 4, 1939, Maud E. Hollums owned as her separate property Lots 7 and 8 in Block 89 of the town of Floydada, Floyd County, Texas, which lots were conveyed to her on November 28, 1922, by her husband, John A. Hollums; that on November 4, 1939, appellee dispossessed her of said property, unlawfully entered upon the same and still withholds it from her to her damage in the sum of $20 per month as a reasonable rent for the same.

Appellee answered on December 21, 1941, with a general denial, a plea of not guilty, and that all title of appellants was divested by foreclosure suit against them in the District Court of Bell County, Texas (reported Tex.Civ.App., 82 S.W.2d 731) as a result of which the property in question was sold by order of sale at a sheriff's sale at which H. C. Glenn, receiver for the Temple Trust Company, plaintiff in the Bell County suit, bought the property in good faith without notice of any adverse claim by appellants. Appellee further alleged that subsequently appellants sought recovery of the title to the said property in a suit filed in the Federal Court styled Maud A. Hollums and husband vs. H. C. Glenn, receiver of the Temple Trust Company, and also sought injunctive relief in said suit, alleging that appellants, who were plaintiffs in that suit, were the owners of the said property and thus put in issue in the said suit the title and possession of the said property; that the title and possession of the said property were litigated and adjudicated adversely to appellants in the said suit; that the proceedings and judgment rendered in the Federal Court case constituted res adjudicata and was a bar to any recovery by appellants; that appellee purchased the said property from H. C. Glenn, receiver of the Temple Trust Company, after the said receiver had established a superior title to the property over any title claimed by appellants. Appellee further alleged that appellants were indebted to Glenn, receiver, and mortgaged the said property to Glenn, as shown by the Bell County judgment; that Glenn purchased the land at a sheriff's sale as a result of the foreclosure suit and took possession of the land and became a mortgagee in possession; that appellee bought the said land from Glenn, receiver, took possession of the same and became a mortgagee in possession and paid delinquent taxes on the property in the sum of $350; that appellants have never paid nor offered to pay the mortgage, judgment or taxes and that appellee having become a mortgagee in possession ought to retain possession of the property. Appellee pleaded the ten-year statute of limitation, for protection as an innocent purchaser and that appellants made a collateral attack on the proceedings and judgments had after the lapse of four years and were thus barred by the four-year statute of limitation. Appellee further pleaded that appellants have acknowledged the foregoing proceedings and judgments and have acquiesced in them and have known that appellee purchased the lots in question, took possession of them, paid the taxes on them and placed valuable improvements on them and that appellants were estopped from recovery due to their laches, delay and inequitable conduct. Appellee concluded with a cross-action against appellants in a trespass to try title.

Appellants replied to appellee's pleadings with a general denial filed on July 4, 1943 and further alleged that no title was vested in appellee by reason of the Bell County foreclosure suit since there was a failure of title due to the fact that no alias order of sale of the property in question issued as a result of the Bell County judgment, that the purported sheriff's sale did not convey the property, that such a sale was not legal in that it was not conducted at the courthouse door and that there was no lawful announcement of the sale prior thereto; that the sale was not valid because the officer who executed the writ did not sign the deed and that the deed was not executed on the date provided for in the posted notice of sale and that the said date of the deed was changed after its execution. Appellants alleged further that no adjudication occurred in the Federal Court case between appellants and Glenn, receiver; that the proceedings in that case were those instituted by John A. Hollums in bankruptcy and did not involve the property in question here, which belonged to Maud E. Hollums as her separate property and that the Federal Court did not acquire jurisdiction to determine the title to the property in question in the instant case and a judgment from the Federal Court would not bind Maud E. Hollums; that appellee is not a mortgagee in possession; that the debt of John A. Hollums to Glenn, receiver, was never a valid debt of Maud E. Hollums and that the said purported debt had been paid and a release of judgment recorded; that the statutes of limitation did not apply and that neither appellee nor Glenn had paid any taxes as they became due; that appellee did not purchase the property in question either in good faith or for value and that appellee had notice of appellants' claims and purchased the same in total disregard of appellants' rights; that the said property had a value of more than $2,500 but that appellee paid less than ten cents on the dollar for it; that Glenn, receiver for Temple Trust Company, converted the property pursuant to a purported sheriff's sale on September 4, 1934, under a void alias order of sale; that the reasonable market value of the property with the improvements was $7,500; that the Temple Trust Company removed some of the improvements and destroyed $4,500 of the said value and thus damaged the appellants to that extent whereby all previous indebtedness existing against the said property was paid and cancelled and the title to the property became clear and became vested in Maud E. Hollums; that they never acknowledged or acquiesced in any of the former proceedings and judgments but had opposed same and claimed the property as the homestead of Maud E. Hollums continuously since 1922, and prayed for judgment as before.

Appellants complain that the trial court erred in giving a peremptory instruction to...