Mercer v. Bludworth

• Citation: 715 S.W.2d 693
• Decision Date: 19 June 1986
• Docket Number: No. 01-85-0924-CV,01-85-0924-CV
• Parties: Jon MERCER, Appellant, v. Robert BLUDWORTH, Appellee. (1st Dist.)
• Court: Court of Appeals of Texas

Page 693

715 S.W.2d 693

Jon MERCER, Appellant, v. Robert BLUDWORTH, Appellee.

No. 01-85-0924-CV.

Court of Appeals of Texas,

Houston (1st Dist.).

June 19, 1986.

Rehearing Denied Aug. 14, 1986.

Theodore C. Flick, Houston, for appellant.

John David Rainey, Rainey & LeBoeuf, Angleton, for appellee.

Before EVANS, C.J., and WARREN and SAM BASS, JJ.

OPINION

SAM BASS, Justice.

This is an appeal from a final judgment, tried to the court, in favor of appellee in a trespass to try title suit.

We affirm.

The case involves the legal ownership of a tract of approximately 717 acres of land ("Property") in Brazoria County, Texas. The common source of title is Coastal Plains Development Corporation ("Coastal Plains"), a Texas corporation. Coastal Plains acquired the property in 1969 and 1970. During the 1960's and 1970's, Coastal Plains was owned and controlled by Charles L. Ducroz. In 1969 Coastal Plains borrowed $75,000 from Pinemont Bank. In 1970 the loan was increased to $130,000, a portion being a renewal of the prior loan, secured by a deed of trust lien covering the property. By 1972 the amount owed on the loan was approximately $141,800.

In 1972, Ducroz arranged a $300,000 loan from First Savings & Loan Association of Alvin, Texas, the predecessor of Delta Savings Association ("Delta"). Ducroz owned another Texas corporation called Intercoastal Development, Inc. ("Intercoastal") which owned approximately 300 acres of land in Brazoria County. Delta required that Ducroz and both corporations sign the note and execute a deed of trust mortgaging all land that each owned. The August 1972 deed of trust recited that it was a renewal and extension of the Pinemont Bank loan.

On February 25, 1975, an Abstract of Judgment dated February 14, 1975, in favor of Tech-Con Corporation and against Coastal Plains was recorded in the Abstract of Judgment Records of Brazoria County, Texas ("money judgment").

By 1976 the loan owed was approximately $234,800. In July 1976 the interest rate was increased and the terms of payment were modified. A new note ("note") was signed and a new deed of trust was executed which renewed and extended the Deed of Trust liens to the Property.

In July 1979, the Brazoria County Sheriff, acting through his deputy, Robert Coupland, levied on the Property under a writ of execution issued on the money judgment.

The sheriff conveyed the property to appellant by deed dated August 10, 1979. Appellant paid $8,500.00 for the Property by crediting said sum on the money judgment.

Subsequently, the obligors defaulted on the note secured by the 1976 deed of trust to Delta. About October 11, 1979, Delta's trustee posted a notice of trustee's sale at the courthouse door of Brazoria County (being more than 21 days prior to the foreclosure sale on November 6, 1979). Ducroz, Intercoastal and Coastal Plains received written notice of default, notice of the acceleration of the maturity, and notice of the foreclosure sale.

On November 6, 1979, Crouch conducted a trustee's sale and sold the Property by trustee's deed to Delta for credit on its debt.

On September 15, 1981, Delta conveyed the Property by recorded deed to appellee for the sum of $300,000.00.

This suit was commenced by appellant to clear title.

The trial court entered its findings of fact and conclusions of law.

Appellant's first and eighth points of error generally claim the trial court erred in rendering a take nothing judgment against appellant and in failing to render judgment for appellant, because appellant's title to the property is allegedly superior, as a matter of law, to appellee's title.

The first set of points of error (2-7), alleges that appellant has superior title because the trustee's foreclosure sale was legally void. Appellant alleges that failure to give notice in strict compliance with Tex.Rev.Civ.Stat.Ann. art. 3810 (Vernon 1974), now Tex.Prop.Code Ann. § 51.002 (Vernon 1984), and failure to correctly identify the lien foreclosed upon in the Notice of Trustee's Sale, are grounds in this case to render the trustee's sale null and void. Appellant also alleges that findings of fact (nos. 22, 28-29, 30, 35, 36) are supported by no evidence and/or insufficient evidence, and/or each is against the great weight and preponderance of the evidence.

The pertinent findings are set forth below:

II. On July 30, 1976, Coastal Plains, Intercoastal, and Ducroz executed and delivered to First Savings Association of Alvin, Texas, a promissory note in the amount $234,816.25. Said note was given in renewal, extension and refinancing of the balance owed on the $300,000.00 note referred to in paragraph 5 above.

22. Acting at the request of Delta Savings Association ("Delta Savings") the owner and holder of the promissory note referred to paragraph II above, the attorney for said note-holder notified the obligors of said note in writing of the default.

28. On or about October 11, 1979, Ducroz, Intercoastal and Coastal Plains received actual notice that Delta Savings had posted the Property for foreclosure, and, that the Property was scheduled to be sold at a trustee's sale on November 6, 1979, in order to satisfy the indebtedness referred to in paragraph II above.

29. More than 21 days prior to November 6, 1979, Ducroz, Intercoastal and Coastal Plains received actual notice from Delta Savings that Delta Savings was foreclosing on its lien described in the deed of trust dated July 30, 1976, and recorded in Volume 513 Page 694 of the Deed of Trust Records of Brazoria County, Texas.

30. The letter notifying the makers of the default, as well as the Notice of Trustee's Sale enclosed with said letter, was served by certified mail and said letter and Notice of Trustee's Sale were served on the obligors of the subject indebtedness more than 21 days before the foreclosure sale described in said notice was held.

35. Prior to the trustee's sale held on November 6, 1979, Coastal Plains was given a reasonable opportunity to cure any default on the note described in paragraph II above.

36. Prior to the trustee's sale held on November 6, 1979, Coastal Plains was given notice of the acceleration of the maturity of the debt described in paragraph II above.

Appellant's second set of points of error (9-11) alleges that because Delta's deed to appellee contained a provision stating it was "subject to" appellant's sheriff's deed, that both appellee and Delta are legally bound and cannot repudiate appellant's title.

Appellant disputes findings of facts nos. 38-40, arguing that they are irrelevant, not supported by admissible evidence, and constitute legal conclusions. These findings are as follows:

38. By accepting the deed from Delta Savings Robert Bludworth did not accept, confirm, or ratify the title conveyed to Plaintiff by the sheriff's deed referred to therein.

39. In accepting the deed from Delta Savings, Bludworth relied upon a title opinion from A.G. Crouch, III that his title was superior to Jon Mercer's and that by accepting the deed he did not ratify Plaintiff's title.

40. At the time he purchased the Property from Delta Savings, Bludworth was of the opinion that Plaintiff's claim against the Property, resulting from the sheriff's deed, was spurious, invalid, and of no merit.

Finally, in his twelfth point of error, appellant alleges that the trial court erred in making finding no. 43, because appellee was on actual notice of appellant's Sheriff's deed and, as a matter of law, appellee was not a good faith improver or a bona fide purchaser. The pertinent findings are as follows:

43. The improvements to the Property made by Bludworth were made in good faith and with the belief that no other party, including Plaintiff, held a valid claim to the Property.

41. During 1961 Bludworth made valuable improvements to the Property costing over $92,168.11.

42. The improvements to the Property made by Bludworth have enhanced the value of the Property by more than $92,168.11.

Appellant's argument raises both no evidence and factual insufficiency points of error. In deciding a "factual insufficiency point" this court is required to review all the evidence, including any evidence contrary to the finding of the court, and decide whether the judgment is so against the great weight and preponderance of the evidence as to be manifestly unjust. Pfeffer v. S. Tex. Laborers' Pen. Trust Fund, 679 S.W.2d 691, 694 (Tex.App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.); In Re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). In deciding a "no evidence" point, this court will consider only that evidence and reasonable inferences therefrom which viewed in its most favorable light supports the jury finding and this court must reject all evidence or reasonable inferences to the contrary. Glover v. Texas General Indemnity Co., 619 S.W.2d 400, 401 (Tex.1981); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).

When both "no evidence" and "insufficient evidence" points of error are raised, the court should rule upon the "no evidence" point first. Glover, 619 S.W.2d at 401. If there is probative evidence, more than a scintilla, in support of the finding, the point will be overruled and the judgment will be affirmed, unless a factual insufficiency point has also been raised and the court sustains it on the basis of a full review of the evidence. Calvert, "No evidence" and "Insufficient evidence" Points of Error, 38 Texas L.Rev. 361, 364 (1960); Garwood, Insufficient Evidence on Appeal, 30 Texas L.Rev. 803 (1952).

When there is evidence of probative force to support the findings and judgment of the trial court they are controlling on the reviewing court and will not be disturbed. A trial court's findings of fact are reviewable for legal and factual sufficiency of evidence to support them and conclusions of law are reviewable when attacked as a matter of law, but not on grounds of sufficiency of evidence to support them, as if they were findings of fact. First Nat'l Bank...