Lemm v. Miller

• Decision Date: 11 November 1922
• Docket Number: (No. 826.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: LEMM et al. v. MILLER et al.
• Court: Texas Court of Appeals

245 S.W. 90

LEMM et al. v. MILLER et al.

(No. 826.)^*

Court of Civil Appeals of Texas. Beaumont.

November 11, 1922.

Rehearing Denied November 22, 1922.

Appeal from District Court, Harris County; W. E. Monteith, Judge.

Suit by Eli Lemm against Betty W. Miller, D. F. Kramer, Elise Kramer, Charles B. Genusa, and the J. B. Farthing Lumber Company, wherein defendants Kramer prayed recovery against defendants Genusa and Betty W. Miller, and wherein defendant Genusa prayed affirmative relief. As between defendants Kramer and the other defendants, judgment was instructed against Elise Kramer and in favor of defendant Genusa, and also in favor of defendant Miller. Judgment for defendant Genusa was rendered, quieting his title against all claims asserted by plaintiff, and plaintiff and defendant Elise Kramer appeal. Judgment as between defendants Kramer and Genusa affirmed, as between defendants Kramer and defendant Miller reversed and remanded, and as between plaintiff and defendant Genusa reversed and rendered.

Jones & Jones and Elbert Roberts, all of Houston, for appellants.

John H. Crooker and W. P. Neblett, both of Houston, for appellees.

WALKER, J.

The facts of this case are as follows:

(1) On October 1, 1914, D. F. Kramer and his wife owned and held as community property the land in controversy in this suit. On said date, defendant J. B. Farthing Lumber Company instituted suit in one of the district courts of Harris county against D. F. Kramer on a debt in the sum of $1,334.07, and on the same day sued out a writ of attachment, and caused it to be levied by the sheriff of Harris county on the following described property of the defendant D. F. Kramer (omitting tracts 1, 2, and 3):

"Those certain lots lying and being situated in the John Austin two-league grant in Harris county, Texas, north of White Oak bayou, each being a part of the former Grota homestead, and part of the German town-site survey, each also being a part of a certain two-league tract of land conveyed by F. L. Perry and Louise Perry to I. R. McCasland. * * *

"Tract No. 4 being that certain lot, tract or parcel of land lying and being situated in Harris county, Texas, and being out of and a part of the two-acre tract hereinabove mentioned, conveyed by F. L. Perry and Louise Perry to I. R. McCasland, described by metes and bounds as follows: Beginning at a point on the east line of said two-acre tract 50 feet south of the northwest corner of said two-acre tract; thence south along the east line of said two-acre tract 50 feet for corner in said east line; thence east parallel with the north line of said two-acre tract 100 feet for corner; thence north parallel with the east line of said two-acre tract 50 feet for corner; thence west parallel with the north line of said two-acre tract 100 feet to the place of beginning."

The sheriff's return on this writ of attachment, showing the levy as made, was duly recorded by the county clerk of Harris county in the attachment lien records.

(2) On the 10th day of March, A. D. 1915, appellant Eli Lemm loaned to D F. Kramer $1,200 in money, for which he took his note, which was secured by a deed of trust executed by D. F. Kramer on the following described tract of land:

"Lot 9 in block 4 in Germantown addition to the city of Houston, out of the John Austin survey in Harris county, Texas, said lot having a frontage of 50 feet on Houston avenue and a depth of 100 feet running back at right angles with said avenue, the S. W. corner of said lot 9 being on the east line of said Houston avenue, at 100 feet from the S. W. corner of the I. R. McCasland homestead tract and the N. W. corner of said lot 9, being on the east line of said Houston Ave. at 150 feet from the said S. W. corner of said I. R. McCasland homestead tract."

The appellees in this case contend that the tract No. 4, as described in the sheriff's return, is the same land described in Lemm's deed of trust.

(3) On the 23d day of November, 1915, J. B. Farthing Lumber Company secured a judgment against D. F. Kramer for the amount of its debt, with a foreclosure of the attachment lien, under which judgment the property was duly sold and bought in by J. B. Farthing Lumber Company on the first Tuesday in February, 1916, and on the 25th day of February, 1916, J. B. Farthing Lumber Company instituted a suit in trespass to try title against D. F. Kramer, in which judgment was rendered on the 24th day of April, 1917, in its favor against Kramer for the title and possession of the property sued for, which included lot No. 4, as described in the sheriff's return.

(4) On the unpaid balance of its judgment against Kramer J. B. Farthing Lumber Company sued out a pluries execution on the 26th day of September, 1917, and had it levied on the following described tract of land:

"That certain tract or parcel of land out of the part of the two acres of land conveyed by Louise Perry and husband E. F. Perry to I. R. McCasland by deed dated July 11, 1894, and recorded in vol. 79, page 183 of the deed records of Harris county, Texas, being also a part of the Old Grota homestead in the Germantown, S. D. of the John Austin two-league grant in Harris county, Texas, and being more fully described as follows: Beginning at a point in the south line of the McCasland two-acre tract at a point 78 feet east of the east line of Houston Ave.; thence north parallel with the east line of Houston Ave. 100 feet; thence east parallel with the south line of said two-acre tract 22 feet; thence north parallel with the east line of Houston Ave. 5 feet; thence east parallel with the south line of said two-acre tract 55 feet; thence south parallel with the east line of Houston Ave. 105 feet to the south line of said two-acre tract; thence west along the south line of said two-acre tract to the place of beginning, in the city of Houston, Harris county, Texas."

And under a sale under such execution bought the lot, taking the sheriff's deed thereto on the 6th day of November, 1917.

(5) On the 28th day of December, 1917, by its general warranty deed, J. B. Farthing Lumber Company conveyed lot No. 4, as described in the sheriff's return, and the lot bought by it on the 6th day of November, 1917, of Mrs. Betty W. Miller, who, on the 14th day of January, 1918, by her general warranty deed, conveyed lot No. 4 to the defendant Genusa. Lot No. 4 in the sheriff's return and the lot described in Lemm's deed of trust — it being the contention of appellees that these two descriptions cover the same property — and the lot bought by Farthing Lumber Company on the 6th day of November, 1917, constitute all the property in controversy in this suit.

(6) On the 7th day of March, 1917, D. F. Kramer conveyed all the property in controversy, together with other property situated on the McCasland two-acre tract, to Earl York, who, on the same day, reconveyed it to appellant Mrs. Elizabeth Kramer, wife of D. F. Kramer.

(7) On the trial of this cause the evidence showed that the McCasland two-acre tract referred to in the sheriff's return was not conveyed to him by F. L. Perry and wife, but by E. F. Perry and wife. By parol evidence, the Grota homestead was located. Partition was shown between a Mr. Grota and Mrs. Perry, and the two-acre McCasland tract was located on the ground as being bounded on the east by Houston avenue, on the north by North street, on the west by the Depenbrock property, and on the south by Payne street. It was further shown that the original northwest corner of the McCasland two-acre tract is 25 feet in Houston avenue; that is, a strip 25 feet wide off the west end of this tract was dedicated by McCasland for street purposes, and is now a part of Houston avenue. It was contended by appellees that the parties, by agreement, had established a new northwest corner for this tract, and that the new corner was the one referred to in the sheriff's return.

(8) The proof shows that after the execution and transfer of said property by Kramer to York, who transferred to Mrs. Kramer, he owned other property in Texas subject to execution, but the value of such property was not shown.

On the foregoing facts, Eli Lemm, as plaintiff, instituted this suit in one of the district courts of Harris county against the defendants, D. F. Kramer, Elise Kramer (otherwise Elizabeth Kramer), Chas. B. Genusa, Betty W. Miller, and J. B. Farthing Lumber Company, alleging the due execution of his note and deed of trust by D. F. Kramer, as above stated, and that the other defendants were asserting some sort of claim against the property covered by the deed of trust, the exact nature of which was unknown to him, and praying for his debt against D. F. Kramer and for a foreclosure of his lien against all the defendants.

Mr. and Mrs. Kramer did not contest the claim of Lemm, but claimed the land in controversy as the separate property of Mrs. Kramer, under the deeds from D. F. Kramer to York, and his deed to Mrs. Kramer. They alleged that the sale under the foreclosure of the attachment lien was void for certain reasons stated, not necessary to mention, and prayed that they have recovery against Genusa and Mrs. Miller, but this issue was not raised by them until more than four years after the sale of the land by the sheriff under the foreclosure of the attachment lien, and no facts were pleaded excusing the delay in seeking that relief.

Genusa pleaded the facts of the suit by J. B. Farthing Lumber Company against Kramer, the levy of the attachment, the sale under the foreclosure of the attachment lien, the trespass to try title suit by Farthing Lumber Company against Kramer, the sale by the lumber company to Mrs. Miller and her sale to him, and on these facts prayed for the recovery of the tract levied on by the sheriff as tract No. 4, alleging that it was the same property covered by Lemm's deed of trust.

Mrs. Miller pleaded the same facts as to the suit for debt by Farthing Lumber Company against Kramer, the...