Murren v. Foster

• Decision Date: 31 May 1984
• Docket Number: No. 07-82-0334-CV,07-82-0334-CV
• Citation: 674 S.W.2d 406
• Parties: Eunice Henderson MURREN, Appellant and Cross-Appellee, v. E. Ralph FOSTER, Appellee and Cross-Appellant.
• Court: Texas Court of Appeals

Page 406

674 S.W.2d 406

Eunice Henderson MURREN, Appellant and Cross-Appellee, v. E. Ralph FOSTER, Appellee and Cross-Appellant.

No. 07-82-0334-CV.

Court of Appeals of Texas Amarillo.

May 31, 1984.

Jack Hazlewood, Amarillo, for appellant and cross-appellee.

Frederick Wolfram, Amarillo, for appellee and cross-appellant.

Before REYNOLDS, C.J., and DODSON and COUNTISS, JJ.

REYNOLDS, Chief Justice.

Eunice Henderson Murren appeals from that portion of a summary judgment which removes from record her claim to an undivided one-third interest in real property, the title to which was quieted in E. Ralph Foster, who appeals from that portion of the judgment which decrees that he take nothing on his claim for damages from Mrs. Murren for slander of title. Concluding that Foster established his entitlement to summary judgment quieting his title to the property, but that Mrs. Murren did not summarily defeat his claim for damages, we affirm in part and reverse and remand in part.

The summary judgment record reveals that:

1. On 8 July 1963, the Veterans' Land Board of Texas and Galen P. Foster entered into a contract of sale and purchase whereby the Board agreed to sell, and Foster agreed to buy, 9.036 acres of land described by metes and bounds in Section 17, Block 9, B.S. & F. Surveys in Potter County;

2. On 9 February 1965, Galen P. Foster and Edwin B. Henderson, a single man, executed a contract of sale by which Foster agreed to sell and convey to Henderson a one-third undivided interest in the real property;

3. On 30 May 1966, Henderson married Eunice Henderson;

4. On 27 May 1968, Galen P. Foster signed a statement certifying that the 1 May 1968 Veterans' Land payment was paid by the rent payment of Amarillo Swine Breeders Association and releasing Henderson from his portion of the May 1 payment;

5. On 14 April 1974, Henderson died, survived by his widow and his parents;

6. On 29 April 1975, the surviving parents signed a warranty deed conveying their interest in the real estate to Eunice Henderson, who subsequently remarried and now is Eunice Henderson Murren, the appellant and cross-appellee;

7. On 13 February 1981, the Veterans' Land Board of Texas executed a deed conveying the real property to Galen P. Foster;

8. On 9 April 1981, Galen P. Foster executed a warranty deed conveying the real property to E. Ralph Foster, Jr., the appellee and cross-appellant;

and that these facts are undisputed.

The 8 July 1963 Board-Foster contract of sale and purchase recites that it is in accordance with the provisions of "Acts 51st Leg., R.S., 1949, Chap. 318, ... which is made a part of this contract for all purposes." The Act was codified as Article 5421m of the Texas Revised Civil Statutes Annotated (Vernon 1962). In 1977, the 65th Legislature repealed Article 5421m when it enacted the Natural Resources Code and included the Veterans Land Board as section 161 thereof. See Tex.Nat.Res.Code Ann. § 161.001 et seq. (Vernon 1978; Vernon Supp.1984).

At the time the contract was executed, section 17 of the existing Act provided, inter alia and with exceptions not involved here, that

The Board is empowered in each individual case to specify the terms of the contract entered into with the purchaser, not contrary to the provisions of this Act, but no property sold under the provisions of this Act shall be transferred, sold, or conveyed in whole or in part, until the original veteran purchaser has enjoyed possession for a period of three (3) years from the date of purchase of said property ....

The contract itself specifically provided that

7. Buyer [Galen P. Foster] understands that the property purchased hereunder shall not be transferred, sold or conveyed until he shall have enjoyed possession for a period of three (3) years from purchase date ....

The prohibition against transferring, selling or conveying the property for three years remained constant in the Act and was reenacted as section 161.224(a) of the Natural Resources Code.

E. Ralph Foster initiated the underlying action against Mrs. Murren when, in connection with his contract to sell the property to a bank, the bank objected to his title on the basis of the recorded 1965 Foster-Henderson contract of sale and the Hendersons' 1975 deed of conveyance. He sought judgment declaring the contract and the deed to be null and void, removing all clouds created by these instruments from his title, and awarding him damages for Mrs. Murren's slander of his title. After responding to Foster's pleadings and disclaiming to the extent of an undivided two-thirds interest in the real estate, Mrs. Murren prayed for judgment that Foster take nothing and that she recover her title and possession of the property, together with attorney's fees.

Following the taking of depositions, Foster moved for summary judgment on all issues except exemplary damages, supporting his motion with certified copies of the recorded instruments listed above and his affidavit. A ground for the motion material to the appeal was that the 1965 Foster-Henderson contract of sale is void under the law, which negates Mrs. Murren's title, and that he established his actual damages as a matter of law.

Mrs. Murren responded to Foster's motion, denying his entitlement to judgment and, based upon the pleadings, the instruments listed above, the depositions and affidavits, moved for summary judgment decreeing her ownership of an undivided one-third interest in the real property and reserving the issue of her claim for attorney's fees. As material here, her motion was grounded on the efficacy of the 1965 Foster-Henderson contract of sale as a conveyance, the acknowledgment and confirmation of which was evidenced by Galen P. Foster's 27 May 1968 statement.

Foster answered, submitting that the 1965 Foster-Henderson contract of sale is void and not subject to ratification. In response, Mrs. Murren pleaded that Foster was a stranger to the contract and, therefore, does not have standing to assert that it was void.

Hearing the motions, the court found there is no genuine issue of the material facts that the 1965 Foster-Henderson contract of sale is void for its violation of the statute--i.e., Tex.Nat.Res.Code Ann. § 161.224(a) (Vernon 1978) and its predecessor Tex.Rev.Civ.Stat.Ann. art. 5421m, § 17 (Vernon 1962)--prohibiting the sale, that the 29 April 1975 deed conveyed no interest in the real property to Mrs. Murren, and that the instruments constitute clouds upon Foster's title to the land. Accordingly, the court granted Foster's motion on these issues, denied Mrs. Murren's motion, and rendered judgment decreeing that the 1965 Foster-Henderson contract of sale and the Hendersons' 1975 deed are held to be void, cancelled and removed as clouds on Foster's title, and that Foster's title to the land is quieted. Since the judgment did not dispose of all of the issues and a severance was not ordered, the judgment was interlocutory and not appealable. Pan American Petroleum Corporation v. Texas Pacific Coal & Oil Company, 159 Tex. 550, 324 S.W.2d 200 (1959).

Thereafter, Mrs. Murren filed her second motion for summary judgment, seeking to be absolved of any liability for slander of Foster's title. The motion, premised on the summary judgment record and supported by affidavits, is grounded on the theory that the filing of the Hendersons' 1975 deed was on the good faith belief that she is the holder of an interest in the property, and that the actions she took and every statement she made were upon the advice of her attorney.

Foster responded to the motion. By an answer, he challenged areas of Mrs. Murren's affidavit and, by his affidavits, he disputed her claim of good faith and alleged that she bore him ill will.

The court heard and granted Mrs. Murren's motion. In rendering judgment, the court, after reciting that there is no genuine issue of any material fact as to Foster's alleged cause of action against Mrs. Murren for slander of title and that she is entitled to judgment as a matter of law, further recited that

Specifically, the Court finds as follows:

The assertion of an interest in the real estate involved in this litigation by the Defendant [Mrs. Murren] has at all times been made in good faith, without malice, and upon advice of counsel.

If this recitation actually is a factual finding of Mrs. Murren's good faith, it has no place in the summary judgment proceeding, State v. Easley, 404 S.W.2d 296, 297 (Tex.1966), for the only question before the court with regard to Mrs. Murren's motion was whether or not there was a genuine factual issue of her good faith. Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557, 562 (1962). Consequently, the finding expressed is neither controlling on appeal nor determinative of the propriety of the summary judgment rendered. Reynolds v. Park, 521 S.W.2d 300, 307 (Tex.Civ.App.--Amarillo 1975, writ ref'd n.r.e.).

The judgment rendered was, as entitled, a final judgment. It incorporated the provisions of the prior interlocutory summary judgment, decreed that Foster take nothing from Mrs. Murren by his action for slander of title, and ordered that all issues are disposed of by the judgment.

Respectively aggrieved by the summary judgment, Mrs. Murren has appealed from that portion which denies her claim to an undivided one-third interest in the land, and Foster has appealed from that portion which decrees he take nothing by his action for slander of title. Their contentions will be considered in that order.

Initially, Mrs. Murren contends that because Foster was not a party to the 1963 contract with the Veterans' Land Board, he has no standing to attack the 1965 Foster-Henderson contract of sale. However, Mrs. Murren did not present this issue to the trial court as a reason to defeat Foster's summary judgment motion; instead, the issue she presented was that Foster had no standing to attack the 1965 Foster-Henderson contract of sale because he was not a party to it. As a...