Jensen v. Bryson

• Decision Date: 15 April 1981
• Docket Number: No. 9285,9285
• Citation: 614 S.W.2d 930
• Parties: Jon Michael JENSEN, Appellant, v. Margie S. BRYSON, Appellee.
• Court: Texas Court of Appeals

Page 930

614 S.W.2d 930

Jon Michael JENSEN, Appellant, v. Margie S. BRYSON, Appellee.

No. 9285.

Court of Civil Appeals of Texas, Amarillo.

April 15, 1981.

Whittenburg, Whittenburg & Schachter, David L. Mullin and Susan L. Burnette, Amarillo, for appellant.

Hudson Moyer, Amarillo, for appellee.

REYNOLDS, Chief Justice.

This appeal from an order temporarily enjoining a sheriff's sale of realty under execution poses this question: is an equitable title to realty vesting before the recordation of a judgment lien given preference over the creditor's rights granted by the recording act? Concluding that it is, we affirm.

The facts developed by the documentary evidence and the testimony are not disputed. In brief, the operative facts are that until 27 August 1980, Terry A. Lomax was the record title owner of Lot No. 5 in Block No. 6, May's Ranches Unit No. 5, an addition to the City of Amarillo, Randall County, Texas. On 20 June 1979, Lomax, as seller, and Margie S. Bryson, as buyer, contracted in writing for his conveyance of the realty to her upon her payment of the cash portion of the purchase price and assumption of the balances on two promissory notes, the payments of which were secured by two deed of trust liens on the realty. Mrs. Bryson took possession of the premises about the first of July, 1979, and, through the tenancy of her sons, has continued in possession. She fully performed her obligations under the written contract not later than 10 December 1979, but Lomax could not be located to execute the deed he was contractually bound to furnish.

Thereafter on 27 March 1980, Jon Michael Jensen obtained a judgment against Lomax for $9,652.80. An abstract of the judgment was recorded in Randall County on 29 April 1980, and a writ of execution was issued on 19 June 1980. Nine days later, W. C. Longest, Sheriff of Randall County, levied the execution on the realty. He posted notice dated 1 August 1980 that the realty would be sold on 2 September 1980.

Subsequent to the levy, Lomax was located and, on 14 July 1980, executed a warranty deed conveying the realty to Mrs. Bryson. The deed, filed for record 26 August 1980, was recorded on 27 August 1980.

On the day the deed was filed for record, Mrs. Bryson instituted the suit underlying this appeal against Sheriff Longest. She alleged that she, not Lomax, was vested with fee simple title by her deed, and that there was a complete performance of the written contract for her purchase of the realty from Lomax, as well as her possession of the premises, prior to the date of Jensen's judgment. The relief Mrs. Bryson sought was to temporarily restrain without notice, and to temporarily enjoin after notice and hearing, the sheriff's sale of the realty.

The court temporarily restrained the sale without notice, setting a hearing on the plea for a temporary injunction for 5 September 1980. On the day before the hearing, Jensen intervened, alleging his entitlement, by virtue of his judgment lien, to have his judgment enforced by the sheriff's sale, and praying that Mrs. Bryson be denied all relief.

After hearing the evidence, the court ordered the issuance of a writ of temporary injunction, enjoining the sheriff's sale pending a hearing on the merits. Jensen brings this appeal from that order.

Our review of the granting of this writ of temporary injunction is strictly limited to determining whether the court abused its discretion. Davis v. Huey, 571 S.W.2d 859, 862 (Tex.1978). There is no abuse of discretion if the court applied the law to the undisputed facts. Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517, 519 (1961).

To merit the writ of temporary injunction, Mrs. Bryson only needed to show her probable right of recovery and her probable injury if the writ is not granted; she was not required to evidence that she will prevail on a final hearing. Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549, 552 (1953). Jensen concedes the showing of a probable injury, but he contends that Mrs. Bryson failed to demonstrate a probable right of recovery. She failed, he submits, because Texas Revised Civil Statutes Annotated art. 6627 (Vernon Supp.1980-1981) establishes the superiority of his judgment lien over Mrs. Bryson's claim arising from the unrecorded contract of sale, which is governed by the statute. We do not agree.

Article 6627 is one of a series of recording acts. The statute, as it is pertinent to the question posed, reads:

All bargains, sales and other conveyances whatever, of any land, tenements and hereditaments, whether they may be made for passing any estate of freehold of inheritance or for a term of years ... shall be void as to all creditors and subsequent purchasers for a valuable consideration without notice, unless they shall be acknowledged or proved and filed with the clerk, to be recorded as required by law ....

The statute partially abrogates the common law rule that a lien creditor is confined to the interest of his debtor in the land at the time of levy; but, because the statute is a legislative creation in derogation of the common law and equitable principles, its application is limited to its exact words. Johnson v. Darr, 114 Tex. 516, 272 S.W. 1098, 1099 (1925). The statutory word "creditors" has been construed to include a judgment lien holder, N. E. Independent School Dist. v. Aldridge, 528 S.W.2d 341, 343 (Tex.Civ.App. Amarillo 1975, writ ref'd n. r. e.); yet, for the creditor's lien to prevail over an unrecorded instrument upon which the statute operates, the creditor must be without notice of such unrecorded instrument. Paris Grocer Co. v. Burks, 101 Tex. 106, 105 S.W. 174, 175 (1907). In this connection, an open, exclusive and visible possession of the premises by others than the debtor is notice of the right under which it is held. Id. And with respect to the question before us, the statute, by its very language, highlighted by the reference to acknowledgment or proof for recordation, operates only on some writing passing an interest in land. Thus, the statute has no application to or effect on an unrecordable interest in land, particularly one which arises by operation of law. Johnson v. Darr, supra, at 1099-1100.

Consequently and contrary to Jensen's view, the written contract between Lomax and Mrs. Bryson is not governed by Article 6627. The contract is not a bargain, sale or other conveyance which passed an interest in the realty; it merely outlined the agreed conditions for the future passing of Lomax's interest in the realty to Mrs. Bryson. Compare Federal Life Ins. Co. v. Martin, 157 S.W.2d 149, 152 (Tex.Civ.App. Texarkana 1941, writ ref'd).

Notwithstanding the facts that the contract did not pass any interest in the realty and that Mrs. Bryson's deed was not recorded until after Jensen's judgment lien was of record, there are two reasons why, on this record, Jensen is not protected by Article 6627. When Mrs. Bryson fully performed under the contract before Jensen's judgment lien was...