Natali v. Witthaus

• Decision Date: 31 January 1940
• Docket Number: No. 1793-7329.,1793-7329.
• Citation: 135 S.W.2d 969
• Parties: NATALI et al. v. WITTHAUS et al.
• Court: Texas Supreme Court

135 S.W.2d 969

NATALI et al. v.WITTHAUS et al.

No. 1793-7329.

Commission of Appeals of Texas, Section B.

January 31, 1940.

Error from Court of Civil Appeals of First Supreme Judicial District.

Suit in trespass to try title to recover title and possession of tract of land by Mrs.

Mathilda Witthaus against C. Natali and others. A judgment for the defendants was reversed and rendered in part and reversed and remanded with instructions in part, 107 S.W.2d 998, and the defendants bring error.

Judgment of Court of Civil Appeals reversed and judgment of trial court affirmed.

Carlos B. Masterson, Rucks & Enlow, and Follett & Hill, all of Angleton, and B. C. Billingsley, Carl C. Runge, Conrad J. Landrum, Lawler, Wood & Childress, Ralph R. Wood, William E. Loose, Walter C. Clemons, Pat N. Fahey, J. V. Wheat, and Chas. L. Terry, all of Houston, for plaintiffs in error.

Charles C. McRae, W. J. Howard, and Williams, Lee, Sears & Kennerly, all of Houston, for defendants in error.

George T. Burgess, of Dallas, and Raymond Edwards and Samuel Peterson, both of San Antonio, amici curiae.

SMEDLEY, Commissioner.

The suit is a formal action of trespass to try title, brought by defendants in error against plaintiffs in error for the recovery of two tracts of land in Brazoria County.Plaintiffs in error claim and possess the land through a sale made by a trustee under power of sale given in a deed of trust to secure the payment of a note held by the Federal Land Bank of Houston. Decision of the first and most important question presented in the case requires either the approval or the disapproval of the holding made in the opinion written by Associate Justice Dibrell in Wiener v. Zwieb, 105 Tex. 262, 141 S.W. 771, 147 S.W. 867.

The case was tried before the court without a jury and judgment rendered that defendants in error take nothing.Elaborate findings of fact were made.The Court of Civil Appeals, approving the dissenting opinion of Associate Justice Ramsey in Wiener v. Zwieb, supra, reversed the trial court's judgment, rendered judgment for defendants in error for the title and possession of the land, and remanded the case for determination of the amount of damages for oil taken from the land and for accounting and adjustment of equities between the parties.Tex.Civ.App., 107 S.W.2d 998.

The facts material to decision of the question first presented are as follows: Title to the land as community property of himself and wife Mathilda was acquired by Max Witthaus through deeds which retained vendor's liens to secure purchase money notes.On June 3, 1919, after the purchase money notes and the superior title had been assigned and conveyed to the Federal Land Bank of Houston, Max Witthaus and Mathilda Witthaus, for the purpose of extending and rearranging the notes, executed and delivered to the Federal Land Bank of Houston their note in the principal sum of $2,650, payable in 68 semi-annual installments, and executed also a deed of trust conveying the land to M. H. Gossett, trustee, to secure the payment of the said note.The grantors in the deed of trust expressly agreed to pay when due all taxes, charges and assessments legally levied against the land, and the deed of trust contained a paragraph by which it was provided that if any of the payments on the note should not be made when due, or if the grantors should permit any taxes or assessments on the land to become delinquent, or in case of a breach of any of the agreements or covenants made, the whole of the note, at the option of the Federal Land Bank of Houston or other holder thereof, should become immediately due and payable, and at the request of the holder of the note the trustee or his successor should sell the property at public auction.By deed dated June 27, 1925, Witthaus and wife conveyed the land to J. W. Hathaway, reserving, however, a 1/16 royalty interest.The grantee assumed payment of the note held by the Federal Land Bank of Houston.

Max Witthaus died intestate September 20, 1927, leaving surviving him as his sole heirs his wife, Mathilda, and his two daughters, Ester W. Smith and Edna W. Keener, who with J. W. Hathaway and the husbands of said two daughters are the defendants in error here.At the time of the death of Max Witthaushe and his wife owned community property, in addition to the royalty interest in the land in controversy, but the value of such other community property was not shown on the trial.Witthaus and his wife owed when he died community debts other than that to the Federal Land Bank of Houston, but no evidence was offered proving or tending to prove that such other debts were not paid when the trustee's sale of the land in controversy was made.There has never been an administration in probate court of the estate of Max Witthaus and the time within which such administration might have been taken out elapsed more than two years prior to the filing of this suit.

The taxes assessed against the land for the years 1923 to 1927 inclusive were not paid, but became and remained delinquent.On account of such delinquency the Federal Land Bank of Houston exercised its option and declared the entire note for $2,650 due and requested the trustee to sell the land in accordance with the provisions of the deed of trust.At the trustee's sale, which was made on May 1, 1928, the Federal Land Bank of Houston became the purchaser of the land for the sum of $2,500, and M. H. Gossett, trustee, acting through his agent and attorney in fact G. A. Barth, conveyed the land to the Federal Land Bank of Houston, the conveyance reciting a compliance with the provisions of the deed of trust with respect to the default, the request for sale, the giving of notice, and the time and the manner of sale.The Federal Land Bank of Houston conveyed the land to plaintiff in error C. Natali on May 11, 1928, for a consideration of $3,000, of which $1,000 was paid in cash, the balance being evidenced by a promissory note payable on or before one year from its date.The plaintiffs in error other than Natali claim under Natali.

This suit was filed October 30, 1933, more than six years after the death of Max Witthaus and more than five years after the trustee's sale.

The Court of Civil Appeals held that at the time the trustee's sale was made, which was about eight months after the death of Witthaus, the probate court of Brazoria County was the exclusive agency through which the sale of the land for foreclosure of the deed of trust lien could have been effectually made, and that the trustee's sale was for that reason void and passed no title.

The holding made in Wiener v. Zwieb, supra, is thus expressed in Associate Justice Dibrell's opinion [105 Tex. 262, 141 S.W. 773]: "The Court of Civil Appeals, speaking through Justice Fly, in an elaborate and well-considered opinion, holds the view that where there was no administration on the estate of the grantor, and after the lapse of four years, the time within which an administration could be sued out, a sale under the deed of trust after the death of the grantor and before the lapse of four years was valid, and passed title to the land conveyed, and we approve that holding."

The opinion contains the following more explicit statement as to the validity of the trustee's sale and the effect of the trustee's deed: "The trustee's deed, made after the death of the constituent and before the lapse of the time within [which] an administration might have been sued out on the estate of the grantor, was valid and effective, and passed the title to the land conveyed, subject only to be set aside by an administration for the payment of such preferred claims as might have existed under the law at the time, and as such deed might have interfered with the orderly administration of said estate.Such deed, made under the circumstances of this case, was neither invalid nor in a state of suspense, except in so far as it might have interfered with the due execution of an administration of the estate of the deceased grantor in said deed of trust, but, to the contrary, said deed was valid and effective, and upon its execution passed the title to the purchaser of said land at said sale against the heirs of the deceased and all other persons with the bare exception above stated."

Chief Justice Brown, writing on motion for rehearing in Wiener v. Zwieb, supra, said that the court was not convinced that it erred in holding in the former opinion that a sale of real estate under a deed of trust within four years after the death of the mortgagor and before administration would be voidable and not void, and that, having reached upon further consideration the conclusion that the facts did not demand a decision of that issue, the court would limit the opinion to the present case.Thereupon in a brief opinion he expressed the conclusion that the power of sale was not suspended by the mortgagor's death and that the trustee's sale vested title in the purchaser because the land, being homestead, did not form, under the applicable statute, the act of August 15, 1870, Acts12th Leg. c. 28, any part of the estate of the deceased mortgagor and was not subject to administration by the probate court.

The court did not withdraw the carefully prepared and well-reasoned opinion written for the majority by Judge Dibrell and did not in the opinion on rehearing express doubt as to its correctness.Judge Dibrell's opinion, until the decision of the instant case by the Court of Civil Appeals, has remained unchallenged except by Judge Ramsey's dissenting opinion.Furthermore, the holding made by the majority in that case was given express approval in a recent decision, Freece v. Truskett, 130 Tex. 90, 94, 106 S.W.2d 675, 677.In the case last cited a sale of land was made by a trustee, acting under the power given in a deed of trust, within four years after the death of the mortgagor and while his estate was being administered by the independent executor of...