Merritt v. Ryno
| Decision Date | 27 May 1954 |
| Docket Number | No. 3189,3189 |
| Court | Texas Court of Appeals |
| Parties | MERRITT et al. v. RYNO. |
F. R. Valentine, Q. Z. Valentine, Waco, for appellants.
W. M. Zachry, and Robert L. Frazier, Waco, for appellee.
Appellee, James William Ryno, a married man, brought this action against B. B. Merritt and Morris R. Wood to cancel a warranty deed which he and his first wife, Lois Katherine Ryno, had executed and delivered to B. B. Merritt and Sallie V. Merritt and to cancel the vendor's lien and contract lien retained in the deed to secure one note in the principal sum of $1575, bearing date January 15, 1953, payable in installments beginning on the 15th of February, 1953, said deed purporting to convey Lot 11 in Block 2, Baylor Addition to the City of Waco, McLennan County, Texas, an also to cancel a certain warranty deed executed and delivered to B. B. Merritt and wife, Sallie V. Merritt, to Morris R. Wood, such deed bearing date March 20, 1953, which deed conveyed property heretofore described, and recited a consideration of $844 paid and received from Morris R. Wood, and the further consideration of the cancellation of the note for $1575 heretofore referred to. The action is grounded on the allegation that the deed from Ryno and his first wife was a simulated transaction wherein the property was conveyed to Merritt and his wife for the purpose of creating an apparent lien on the homestead of Ryno and wife, with the promise and agreement on the part of Merritt to reconvey the property to Ryno after the sale and transfer of the note for $1575. The appellee sought cancellation of his deed to Merritt and wife and the deed from Merritt and wife to Wood on the theory that the entire transaction was fictitious and that the attorneys for Wood, who passed the title and prepared the papers, were fully aware of the fact that such transaction was simulated, and sought relief by asking that the deed from Ryno and his wife to Merritt and his wife be cancelled, and that the deed from Merritt and wife to Morris be canceled. At the close of the testimony defendants Merritt and Wood filed their motions for instructed verdict, which were overruled, and the jury in its verdict found substantially that the deed from Ryno and wife to Merritt was a simulated sale of the homestead to create a loan thereon; that defendant Morris R. Wood knew or should have known that the deed of date January 15, 1953, aforesaid, was a simulated sale of the homestead to create a lien thereon. The court granted Ryno's motion for judgment on the verdict and decreed that the deed from Ryno and wife dated January 15, 1953 be canceled; that the lien placed on Lot 11, Block 2, Baylor Addition to the City of Waco, McLennan County, Texas, be canceled, and further decreed that the deed executed by Merritt and wife to Morris R. Wood, dated March 20, 1953, be canceled, and that title to Lot 11, Block 2, Baylor Addition to the City of Waco, McLennan County, Texas, be reinvested in the plaintiff James W. Ryno, and directed the Clerk to issue his writ of possession. Defendants seasonably filed their motion for new trial, which was overruled, and they perfected their appeal to this court.
The judgment is assailed substantially on the ground that the court erred in granting judgment in favor of appellee Ryno for the reason that all necessary and indispensable parties were not before the court and by reason thereof the court had not acquired jurisdiction to render judgment disposing of the subject matter of this litigation. We are in accord with this view.
This record is without dispute that the property at the time Ryno and wife conveyed it to Merritt and wife was the homestead of Ryno and his former wife, Lois Katherine Ryno. Plaintiff filed his original petition on March 25, 1953. Subsequent to the execution of the deed by Ryno and his former wife under date of January 15, 1953, and prior to the trial of this case in October, 1953, Ryno's first wife, Lois Katherine Ryno, had divorced him (the exact date not given) and had remarried. Ryno, subsequent to his wife obtaining a divorce from him, remarried and was living with his second wife at the time of this trial and at the time judgment was entered. It is true that Lois Katherine Hamrick (former wife of Ryno) was present and testified on the trial of this case, but she was not a party defendant nor plaintiff. It is likewise true that Merritt's wife, Sallie V. Merritt, was present and testified on the trial of this cause, but she was not a party to the suit.
In Barmore v....
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Petroleum Anchor Equipment, Inc. v. Tyra
...requires consideration by the appellate court. 10 Tex.Jur.2d, Cancellation of Instruments, § 65, p. 416. In the case of Merritt et al. v. Ryno, Civ.App., 268 S.W.2d 546, a very similar situation was presented in a case to cancel written instruments. In that case the wife of one of the grant......
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Mason v. Mason
...it is apparent that all necessary and indispensable parties are not before it. Barmore v. Darrach, Tex.Civ.App., supra; Merritt v. Ryno, Tex.Civ.App., 268 S.W.2d 546, 547, no writ Neither appellant nor appellee has assigned as error the failure to implead all of the persons named in the wil......
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Petroleum Anchor Equipment, Inc. v. Tyra
...Corp. v. Dennis, 160 Tex. 392, 332 S.W.2d 313 (1960); Sharpe v. Landowners' Oil Ass'n, 127 Tex. 147, 92 S.W.2d 435 (1936); Merritt v. Ryno, 268 S.W.2d 546 (Tex.Civ.App.--Waco 1954, no writ); and Backus Portable Steam Heater Co. v. Simonds, 2 App.D.C. 290 (D.C.Cir.1894). In Dennis we had no ......
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Cooper v. Texas Gulf Industries, Inc.
...dismissal with prejudice is invalid. Plaintiffs rely on Sharpe v. Landowners Oil Ass'n., 127 Tex. 147, 92 S.W.2d 435, and Merritt v. Ryno, CCA, NWH, 268 S.W.2d 546. These cases hold that all parties to a written instrument are necessary parties in a suit to cancel such instrument, but they ......