Hughes v. Groshart

• Decision Date: 07 April 1941
• Docket Number: No. 5285.,5285.
• Citation: 150 S.W.2d 827
• Parties: HUGHES v. GROSHART.
• Court: Texas Court of Appeals

150 S.W.2d 827

HUGHES v. GROSHART.

No. 5285.

Court of Civil Appeals of Texas. Amarillo.

April 7, 1941.

Rehearing Denied May 12, 1941.

Appeal from District Court, Lubbock County; Daniel A. Blair, Judge.

Suit by O. D. Groshart against S. W. Hughes for the cancellation of a judgment, in so far as such judgment appeared to create a lien on certain real estate and apparently cast a cloud on the title thereof, wherein defendant answered and prayed that his judgment lien be foreclosed. From a judgment in favor of plaintiff, defendant appeals.

Judgment affirmed.

J. E. Brown, of Brady, for appellant.

Garriott T. Baldwin, of Slaton, for appellee.

JACKSON, Chief Justice.

On November 2, 1933 E. C. Brand, the Banking Commissioner of the State of Texas, acting as such, recovered judgment in Cause No. 5769 in the District Court of Lubbock County in the sum of $1,695.43, with interest and costs of suit against C. W. Taylor, also known as Charles W. Taylor, and W. E. Olive, which judgment after it was abstracted was indexed and recorded on November 10, 1933, in the judgment records of Lubbock County, Texas, and by the banking commissioner transferred to S. W. Hughes on July 26, 1937.

On October 1, 1934 C. W. Taylor and his wife, Thelma, entered into a written contract with the Standard Savings & Loan Association, a corporation of Detroit, Michigan, herein called the savings bank, by the terms of which the savings bank agreed to sell and convey to C. W. Taylor and wife all of Lot No. 11 in Block No. 55 of the South Slaton Addition to the town of Slaton in Lubbock County, Texas, for a consideration of $100 cash paid and the additional amount of $1,975, with interest, payable in monthly installments of $25 each, the installments as paid to be applied first to the payment of interest and the balance on principal. When the sum of $475 was paid on the principal the savings bank agreed to make, execute and deliver a warranty deed conveying to the Taylors said lot and improvements upon their execution to the bank of a vendor's lien note and also a deed of trust to secure the payment of the balance of the purchase price.

The contract provided that the Taylors should have possession of the lot and premises when the contract was executed and delivered. The testimony shows that the bank prior to the execution and delivery of the contract agreed to make certain improvements on the premises and so soon as such improvements were completed the contract was signed by all parties and Taylor and his wife moved upon and occupied the premises as their homestead continuously and uninterruptedly until they sold the property to Dr. O. D. Groshart.

On March 7, 1936, in conformity with the contract, the savings bank executed and delivered to Charles W. Taylor and his wife, Thelma, a warranty deed conveying to them said lot and retained in the deed a vendor's lien to secure the payment of the balance of the purchase money which was evidenced by a vendor's lien installment note and also a deed of trust against the lot given by Taylor and his wife.

On December 30, 1939, Charles W. Taylor and wife executed a warranty deed conveying said Lot No. 11 to Dr. O. D. Groshart who was a married man and who with his family moved onto the premises on December 31st while the Taylors were moving out but before they had completely vacated the residence. Dr. Groshart and his family have since claimed, used and continuously occupied the premises as their homestead. The deed conveying the lot to Dr. Groshart recited a consideration of $900 paid, acknowledged the receipt thereof and also stipulated for the assumption by the grantee of the balance on the installment note given to the Standard Savings and Loan Association by Taylor and his wife.

In addition to the deed the grantors and grantee entered into a written contract which, together with the deed, was placed in escrow in the Citizens State Bank of Slaton. The contract was not introduced in evidence but the oral testimony, admitted without objection, indicates that it recited that Dr. Groshart had paid but $200 of the $900 cash payment acknowledged and stipulated that the remainder thereof, $700, was to be paid in monthly installments of $20 each and the deed was not to be delivered by the bank to the grantee until the entire $900 cash payment was made. No vendor's lien was retained in the deed dated December 30, 1939, to secure the payment of this $700 and on April 16, 1940, Taylor and wife executed to Dr. Groshart a deed which recites that it is given as a correction deed and in lieu of the deed executed December 30, 1939, but provides as part of the consideration that the $900 was paid and secured to be paid as follows: $200 cash on December 30, 1939, and the execution and delivery of a certain installment vendor's lien note of the same date for the sum of $700, payable to Charles W. Taylor in monthly installments of $20 each and the further consideration of the assumption by Dr. Groshart of a balance of about $1,600 owing to the Standard Savings & Loan Association. This deed was filed and recorded in the deed records of Lubbock County on April 25, 1940, and the installment payments on the note for $700 to Mr. Taylor and also the installment payments on the note to the Standard Savings & Loan Association have been paid as they accrued by the grantee in the deed.

On May 1, 1940, Dr. Groshart, the appellee, instituted this suit in the...