Jackson v. First Nat. Bank

• Decision Date: 05 January 1927
• Docket Number: (No. 2720.)
• Citation: 290 S.W. 276
• Parties: JACKSON et ux. v. FIRST NAT. BANK.
• Court: Texas Court of Appeals

290 S.W. 276

JACKSON et ux. v. FIRST NAT. BANK.

(No. 2720.)

Court of Civil Appeals of Texas. Amarillo.

January 5, 1927.

Rehearing Denied January 26, 1927.

Appeal from District Court, Oldham County; Reese Tatum, Judge.

Suit by the First National Bank against H. M. Jackson and his wife. Decree for plaintiff, and defendants appeal. Affirmed.

Will S. Payne, of Dallas, for appellants.

Madden, Atkins & Pipkin and Harris M. Kimbrough, all of Amarillo, for appellee.

RANDOLPH, J.

This suit was filed by appellee as plaintiff against H. M. Jackson and his wife, Pearle Jackson, as defendants. Judgment was rendered by the trial court for the bank, and the defendants have appealed to this court.

The plaintiff in its petition alleges substantially that on the 25th day of April, 1924, in the district court of Potter county, Tex., in cause No. 3924, then pending in said district court of Potter county, Tex., wherein plaintiff herein was plaintiff, and the defendants herein, with others, were defendants, plaintiff recovered a money judgment against the defendant H. M. Jackson, approximating $14,894.90, with all costs, and for a foreclosure against all of the defendants in said suit of a deed of trust lien on the land in controversy herein; further alleging issuance and levy of order of sale, which order of sale named all the defendants in that suit and ordered the sale of said land in satisfaction of such judgment, and that such sale should extinguish the rights of all of said defendants; return of the sheriff of Deaf Smith county showing sale of the land to the plaintiff in that case; and further alleging the issuance and delivery to it by such sheriff of a deed conveying said land to it under and by virtue of said order of sale and sale; and, also, said petition alleges continuous, repeated trespasses upon the land by defendants; and, further, that the defendant H. M. Jackson had recently filed his petition in bankruptcy with the referee in bankruptcy.

Defendant's answer contains a plea in abatement and special answer to the merits and other matters not here necessary to state.

The record discloses that the plaintiff brought suit in the district court of Potter county upon a note given by the defendant H. M. Jackson to it; that Mrs. Pearle Jackson and others were made parties defendant along with H. M. Jackson in said suit; that in said suit the plaintiff recovered a money judgment against H. M. Jackson, and a judgment of foreclosure of a trust deed lien against him, Mrs. Jackson, and the other defendants in that cause, and also shows acts of trespass by H. M. Jackson in the gathering of the one-fourth crop rental.

There is no proposition or assignment presented in appellant's brief which brings in question plaintiff's right to maintain the suit for injunction because of adequate relief afforded it by law. However, the defendant does present a plea in abatement which sets up the residence of the defendants in Oldham county, and that the land to be affected by the judgment is situated in Deaf Smith county, and that the district court of Oldham county would not have jurisdiction of the suit, for the reason that same should have been brought in the county where the land was situated. This plea was not verified.

Error is assigned by appellant upon the court's action in permitting the introduction of certified copies of the judgment, order of sale, and return of the sheriff thereon, over objection of the defendant that same had not been filed among the papers of the cause for three days and notice thereof served upon appellants or their counsel.

These instruments do not come within the purview of article 3726 of the Revised Civil Statutes 1925, but do come under the provisions of article 3720, relating to certified copies of public records.

We are of the opinion that the objection to the original of the deed from the sheriff of Deaf Smith county should have been sustained because of the failure of the plaintiff to file same and give the notice required by article 3726, but the introduction of this deed in evidence did not change the status of the ownership of the land. The introduction of the deed was not necessary to establish the title in the plaintiff. The judgment, order of sale, and return of the sheriff, showing the sale to the plaintiff, had already passed the title to plaintiff, and a deed was not necessary to effectuate that. Rosenthal & Desberger v. Mounts (Tex. Civ. App.) 130 S. W. 192; Donnebaum v. Tinsley, 54 Tex. 362; Reeder v. Eidson (Tex. Civ. App.) 102 S. W. 750. Hence the introduction in evidence of the deed was harmless error, and we overrule this assignment.

The defendant Mrs. Pearle Jackson assigns as error the action of the trial court in refusing to permit her to introduce evidence of ownership of one-fourth of the land in her own separate right, and in refusing to permit her to introduce proof that one-fourth of said land was purchased with money derived from her separate estate. Mrs. Jackson was made a party to the Potter county suit, and, as stated, the plaintiff recovered a money judgment against the defendant H. M. Jackson, and was decreed a foreclosure of the trust deed lien securing the payment of same against all of the parties, including Mrs. Jackson. Mrs. Jackson does not, in any manner, attack the judgment in the Potter county case, except to insist that as no money judgment was rendered against her, such judgment does not estop her from asserting her right and title to one-fourth of the land in this suit.

In the absence of proof of the contents of the petition in the Potter county suit, we must presume that the allegations therein contained support the judgment as rendered by the trial court.

The judgment rendered in the Potter county case shows that Mrs. Jackson's rights were involved, and it was her duty to have appeared in that suit and to have presented her defenses to the plaintiff's action to foreclose its...