Moon v. Sherwood

• Decision Date: 13 November 1915
• Docket Number: (No. 840.)
• Citation: 180 S.W. 296
• Parties: MOON v. SHERWOOD.
• Court: Texas Court of Appeals

180 S.W. 296

MOON v. SHERWOOD.

(No. 840.)

Court of Civil Appeals of Texas. Amarillo.

November 13, 1915.

Error from District Court, Collingsworth County; J. A. Nabors, Judge.

Action by C. F. Berry against M. L. Langford and others on a vendor's lien note, wherein R. R. Sherwood intervened, and which suit was consolidated with an action by R. R. Sherwood against James A. Moon and others. From the judgment rendered, James A. Moon brings error. Affirmed in part and reversed and remanded in part.

R. H. Templeton, of Wellington, and H. E. Hoover, of Canadian, for plaintiff in error. R. H. Cocke, Jr., of Wellington, for defendant in error.

HUFF, C. J.

On the district court docket of Collingsworth county, in cause No. 296, a suit was instituted by one C. F. Berry against M. L. Langford, W. H. Painton, James A. Moon, and C. M. Lane, on a vendor's lien note for the sum of $400, executed by Langford to C. M. Lane, dated December 5, 1910, as part of the purchase money for the N. W. 1/4 of section 28, block 15, H. & G. N. Ry. Co. survey.

The petition alleged that Moon and Painton claimed or asserted some interest in the land. This suit was filed October 26, 1912. Judgment was taken in this suit for the debt against Langford and Lane on the 15th day of April, 1913, foreclosing the vendor's lien on the land as to said parties, and also as to the interest of Moon and Painton it directed the issuance of an order of sale. On August 4, 1913, an order of sale was issued on the above judgment which was executed September 3, 1913, by selling the land at public sale, as under execution, at which time R. R. Sherwood became the purchaser, to whom the deed was made by the sheriff executing the order of sale. The amount bid and paid by Sherwood was $25.

On the 2d day of March, 1914, R. R. Sherwood instituted suit against James A. Moon and A. G. Burke, a tenant of Moon on the land, for the land, in the form of trespass to try title, and sued out therein a writ of sequestration, the number of this suit on the docket being 349. After the institution of this suit James A. Moon, on April 10, 1914, filed a petition or motion in cause No. 296 to set aside the judgment obtained therein, on the ground that it was rendered without proper service on the parties, and set out specifically that he was a nonresident of the state, not having been served with notice, as required by the statute for nonresidents, but that service was attempted on him by publication, but that it was not had for the time and in the manner required by the law, and not for four full weeks, and that the cause was not passed over for the first term after such publication. By permission of the court Sherwood intervened in that case, setting up therein that he was a purchaser of the land at the foreclosure sale, and that he had a deed from W. H. Painton and C. M. Lane, and also had purchased and paid for or had transferred to him the $400 note, of which he was the legal holder and owner.

On the 14th day of April, 1914, the issue as to the validity of that judgment was tried before the court, who finds as follows:

"It appearing to the court that the judgment of this court heretofore rendered in this cause, as recorded in volume 1, p. 90, District Court Minutes, Collingsworth county, Tex., was rendered without proper service upon the parties defendants, and that said judgment disposed of their interest in and to the N. W. 1/4 of section No. 28, in block No. 15, H. & G. N. Ry. Co. survey, in Collingsworth county, Tex., and that the interest of James A. Moon in and to said land was disposed of without service on him, it is therefore considered, adjudged, and decreed by the court that the judgment of this court heretofore rendered in this cause, as recorded in the District Court Minutes, in volume 1, p. No. 90, Collingsworth county, Tex., be and the same is hereby set aside and without further force and effect as to disposing of the interest of James A. Moon in and to the N. W. 1/4 of section No. 28, block No. 15, H. & G. N. Ry. Co. survey, in Collingsworth county, Tex.," etc.

There appears to be no objection by either party to this appeal to the judgment so entered.

On the 13th day of April, 1914, Sherwood made a motion to consolidate the two causes, Nos. 296 and 349. We find no order of the trial court consolidating the two causes, but both parties appear to treat the case as consolidated, and the pleadings were amended, in which the style of both cases, together with the two numbers, was indorsed thereon, and the final judgment treats the cases as having been tried under consolidation.

On the 20th day of April, 1914, R. R. Sherwood amended his petition as against James A. Moon and A. G. Burke. He first apparently seeks a recovery of the land as the owner thereof in an action which is substantially that of trespass to try title, and in the fourth paragraph of this amendment he sets out the fact that he is the legal holder of the note and the value thereof mentioned in the petition of James A. Moon set forth and described in the judgment therein mentioned and set forth, and that he purchased the land in said petition described, that after the purchase at sheriff's sale, for a valuable consideration in due course of trade, he bought all interest in and to said suit, and in and to said notes therein described and mentioned, and also bought for value the right, title, and superior lien which said note evidenced from C. M. Lane and from C. F. Berry, and that plaintiff is now the legal owner and holder of said note, lien, and superior title, and that he holds the deed of the sheriff of Collingsworth county to said land under and by virtue of the foreclosure. He alleges that the note for $400 principal was destroyed by fire, and that it bore date December 7, 1910, with interest from date at the rate of 10 per cent. per annum, and provides for 10 per cent. attorney's fees, etc.; and he further alleged that he was the legal owner and holder of vendor's lien note for the sum of $250, dated December 12, 1908, with the lien and the superior title which said note carries with it, and said note bears interest at the rate of 10 per cent. from date and provides for 10 per cent. attorney's fees. He alleges also that he paid $4.68 interest to the state due on the public school land, and also $21.50 taxes. His prayer is that he have judgment for the title and possession of the above-described land and premises and writ of possession therefor; that he have judgment against James A. Moon and A. G. Burke foreclosing their interest in the land heretofore described; that he have an order of sale foreclosing the lien on said land.

Moon and Burke answered this petition at some length, which will be unnecessary to set out. Moon especially answered that, if the court shall find Sherwood can sue for the land, and at the same time seek a foreclosure, then he tenders into court the amount due on said note, "and asks that the title be adjudged in him, subject to the incumbrances shown by said notes, and that he be given 60 days in which to pay off and settle said notes and save his land, and that the title be adjudged into him with the privilege of paying off said notes and incumbrances, if any, that may be adjudged against the land in controversy."

The facts regarded as material are that it was agreed by the parties that C. M. Lane is the common source of title.

On the 12th day of December, 1908, C. M. Lane conveyed the land in question to J. H. Shields for a recited consideration of $800 in cash and three vendor's lien notes for the sum of $250 each, due respectively December 12, 1909, 1910, and 1911. On the 16th day of December, 1908, C. M. Lane transferred to O. P. Jones, by a written transfer duly acknowledged and recorded, the three vendor's lien notes mentioned in his deed to Shields.

On the 7th day of June, 1909, J. H. Shields and wife conveyed the land to A. G. Lane for a recited consideration of $1,050 cash, and the balance, $750, assumed by A. G. Lane, being the three vendor's lien notes referred to in the deed of C. M. Lane to Shields. This deed was duly filed for record on the 19th day of June, 1909, in the proper office. On the 20th day of September, 1909, A. G. Lane and wife reconveyed the land to C. M. Lane for a recited consideration of $1,800 in hand paid. It is further recited that of the $1,800 $1,050 is in cash, and the other is evidenced by three certain vendor's lien notes for $250 each, dated December 12, 1908, etc., being the notes above mentioned. This deed was filed for record November 15, 1910.

A deed from C. M. Lane to W. L. Langford, dated December 5, 1910, being the land, for a recited consideration of $700 cash, $400 note due 12 months after date, drawing interest at 10 per cent., and the assumption of two notes for the sum of $250 each, due December 12, 1910 and 1911, executed by Shields and payable to C. M. Lane. A vendor's lien was retained in the deed to secure the payment of the above notes. This deed was filed for record December 10, 1910.

A quitclaim deed from W. L. Langford and wife, conveying the land for a recited consideration of $3,000 to W. H. Painton. Of the consideration $171.65 is recited as cash in hand paid, and $2,828.35 is embraced in the vendor's lien note dated July 3, 1911, with interest at 8 per cent. per annum, due July 3, 1912, with 10 per cent. attorney's fees. A vendor's lien was retained to secure the payment of this note. This deed was filed for record the 28th day of July, 1911. Sherwood also offered in evidence a portion of the deed from W. H. Painton and wife to J. A. Moon, dated the 28th day of November, 1911.

On November 28, 1911, Painton and wife conveyed to James A. Moon the land by deed for a recited consideration of $1.00 and other valuable considerations, paid by James A. Moon, with the recital: "This deed is made subject to an incumbrance of $650.00, due December, 1911." This deed was recorded June 15, 1912.

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