McDonald v. Powell Lumber Co.

• Decision Date: 27 September 1951
• Docket Number: No. 4743,4743
• Citation: 243 S.W.2d 192
• Parties: McDONALD et al. v. POWELL LUMBER CO. et al.
• Court: Texas Court of Appeals

Page 192

243 S.W.2d 192

McDONALD et al. v. POWELL LUMBER CO. et al.

No. 4743.

Court of Civil Appeals of Texas, Beaumont.

Sept. 27, 1951.

Rehearing Denied Oct. 24, 1951.

Homer E. Stephenson, W. P. Sexton, R. Lee Davis, all of Orange, A. M. Huffman, Beaumont, for appellant.

E. L. Reid, Clyde McKee, Jr., Orange, for appellee.

COE, Chief Justice.

Appellees, as plaintiffs in the trial court, filed their suit in form of trespass to try title against appellants, seeking to recover title and possession of 440 acres of land out of the Richard Ballew league of land located in Orange County, Texas, and for damages thereto. Some of the defendants were served with citation by publication and were represented by an attorney appointed by the court for that purpose. The defendants answered by general denial, pleas of not guilty and various pleas of limitation. At the conclusion of the evidence the plaintiffs filed their motion for an instructed verdict, which the trial court granted and entered judgment for the plaintiffs in accordance with such verdict.

The parties have agreed to a statement of facts upon which this case is submitted; the pertinent portions of which are as follows:

'Gilbert McDonald, Sr., and wife, Susan McDonald, are the common source of title through whom both plaintiffs and defendants claim.

'On the 23rd day of October, 1902, gilbert McDonald, Sr., and wife, Susan McDonald, executed two deeds of trust, one conveying 400 acres and one conveying 40 acres, which together constitute all of the land in controversy. These deeds of trust conveyed this land to Isaac Harris as Trustee for the benefit of The Aultman & Taylor Machinery Company, to secure payment of certain promissory notes signed by Gilbert McDonald, Sr., and Gilbert McDonald, Jr., payable to The Aultman & Taylor Machinery Company and evidencing the indebtedness of the makers to that company for the purchase price of saw mill machinery sold to Gilbert McDonald, Sr., and Gilbert McDonald, Jr. Both deeds of trust were promptly placed of record in the office of the County Clerk of Orange County, Texas, on the 31st day of October, 1902.

'The said promissory notes were made payable in Dallas County, Texas, and, the makers defaulting in their payment, The Aultman & Taylor Machinery Company filed suit in the District Court of Dallas County, Texas, on the 15th day of July, 1903, against Gilbert McDonald, Sr., and wife, susan McDonald and Gilbert McDonald, Jr., asking for judgment against the makers of such notes for the amount of their debt and against all defendants for foreclosure of the Deed of Trust Liens securing payment of said notes. Plaintiffs obtained a judgment dated the 15th day of September, 1903, against Gilbert McDonald, Sr., and Gilbert McDonald, Jr., in the amount of Two Thousand Sixty-six Dollars ($2,066.00), and against all defendants for foreclosure of the Deeds of Trust Liens executed by Gilbert McDonald, Sr., and wife, Susan McDonald, upon all the property now in controversy in this suit. An order of sale was issued by the Clerk of the District Court of Dallas County, Texas, directing the Sheriff or any Constable of Orange County to seize and sellthe property described in said Deeds of Trust, and being the property in controversy in this suit, as under execution. In pursuance of such order of sale and writ, the Sheriff levied upon such land on the 2nd day of November, 1903, and, after having given notice of the time and place of sale, duly sold such property for a valuable consideration to Oliver Bland, and on the 1st day of December, 1903, executed Sheriff's deed conveying the property to the said Oliver Bland, purchaser at said sale, which deeds were promptly placed of record in the office of the County Clerk of Orange County, Texas, on the 7th day of December, 1903. Plaintiffs now have and hold such title through a regular chain of conveyances from Oliver Bland.

'Defendants introduced evidence sufficient to raise an issue of fact for submission to the jury as to whether or not Gilbert McDonald, Sr., and wife, Susan McDonald, on the 8th day of September, 1894, executed a deed conveying to Ronald McDonald and Gilbert McDonald, Jr., a portion of the property in controversy. This purported deed remained unrecorded for more than twenty-nine (29) years and until the 19th day of July, 1924, when it was filed for record in the office of the County Clerk of Orange County, Texas. Defendants offered evidence to show that they are the heirs of Ronald McDonald and Gilbert McDonald, Jr.

'Defendants produced no evidence whatsoever regarding the status of either The Aultman & Taylor Machinery Company or Oliver Bland as bona fide purchasers without notice of the purported deed executed by Gilbert McDonald, Sr., and wife, Susan McDonald, as Grantors, with Ronald McDonald and Gilbert McDonald, Jr., as Grantees, but plaintiff introduced evidence sufficient to raise an issue of fact to be submitted to the jury that at the time The Aultman & Taylor Machinery Company secured its Deed of Trust Liens, obtained its judgment, order of sale and levy of execution, it had no notice of the purported deed and that at the time...