Nutt v. Anderson, 13217.

• Citation: 87 S.W.2d 760
• Decision Date: 27 September 1935
• Docket Number: No. 13217.,13217.
• Parties: NUTT et al. v. ANDERSON et al.
• Court: Texas Court of Appeals

Page 760

87 S.W.2d 760

NUTT et al. v. ANDERSON et al.

No. 13217.

Court of Civil Appeals of Texas. Fort Worth.

September 27, 1935.

Rehearing Denied October 25, 1935.

Appeal from District Court, Wichita County; Allan D. Montgomery, Judge.

Suit by J. Newton Nutt against David R. Anderson and others, wherein C. S. Schmoker intervened. From an adverse judgment, plaintiff and others appeal.

Affirmed.

Milburn E. Nutt, of Wichita Falls, for appellants.

Wayne Somerville, of Wichita Falls, for all appellees except Empire Mortg. Co. and C. S. Schmoker.

Kay & Akin, of Wichita Falls, for appellees Empire Mortg. Co. and C. S. Schmoker.

MARTIN, Justice.

Mrs. L. T. Anderson was the owner in fee of the land in controvesy in this case, acquiring it by purchase in the year 1922, upon the dissolution of a corporation formerly owning the same. During her lifetime she created mortgages on several tracts, including this one, in favor of the City National Bank and the Empire Mortgage Company, and on January 9, 1923, executed a deed of trust to W. L. Robertson, trustee, in favor of the Empire Mortgage Company to secure the payment of a note of $8,000 secured by five tracts of land, including this one, and such deed of trust was duly recorded in the deed records of Wichita county. She also executed a renewal of such indebtedness and its security on December 22, 1927, which was also duly recorded. In the meantime, the Empire Mortgage Company had sold the note or mortgage bond to appellee C. S. Schmoker, soon after it was made, but no transfer of the lien was ever executed and placed of record; the mortgage company remaining the record owner of the security up to the time of trial. This was shown to be the custom of the company, when notes were thus sold, and also to contract for renewals of such instruments when transfers were not made, acting as a trustee for the owner of the note.

Mrs. Anderson in the year 1931 died, and on November 16, 1931, the appellees David N. Anderson, Ray N. Anderson, and J. B. Marlow were appointed joint administrators of her estate. Mrs. Anderson having married a man named Killion, the probate proceedings were conducted under the name of "Estate of Leona F. Anderson Killion."

The administrators duly advertised in February and March, 1932, within the time required by law, for all persons having claims against the estate to present them for allowance; but they did not notify the Empire Mortgage Company, by registered letter, as required by law, although the administrators had full knowledge of the existence of this lien against the estate. On the other hand, the executive officers of the Empire Mortgage Company had actual notice of the death of Mrs. Killion and of the pending administration of her estate. It is disclosed by the record and practically admitted by the parties that the estate was insolvent.

On December 28, 1933, the administrators filed a petition for an order of sale of all real estate belonging to the estate, including the land in controversy. It was duly advertised, and on the 8th day of January, 1934, the county probate court granted the order of sale, and on the 6th day of February the several tracts belonging to the estate were sold; this particular tract being knocked down to the Empire Mortgage Company at a price of $1,455. The sale was reported and confirmed by the court, but the company declined to take the property, so it was, in conformity with law, resold on the 1st day of May, 1934; the appellant herein, J. Newton Nutt, becoming the purchaser for a consideration of $1,500, of which amount $300 was paid in cash and he executed his note for the balance of $1,200, payable within twelve months. This sale was duly approved on report to the court. The order approving this sale directs the administrators to make title to Mr. Nutt, "free and clear of all liens, claims, titles, equities and estates whatever except lawful taxes" against the same. The deed executed by the administrators contains the same language and is dated May 14, 1934.

On July 6, 1934, appellee C. S. Schmoker presented his claim to the attorney for the administrators of the estate in the sum of $10,376 principal and interest, and it was returned a few days later neither allowed nor rejected.

On June 6, 1934, appellant filed his petition in form of trespass to try title, making all record creditors, all unknown creditors, heirs at law, known and unknown, and all administrators and the estate itself parties defendant. The unknown heirs and all defendants cited by publication were represented by counsel, appointed by the court, and all defendants except the administrators, the intervener Schmoker, and the Empire Mortgage Company filed disclaimers. Schmoker was permitted to intervene and set up his note and the deed of trust, still held by the mortgage company. By his answer he pleaded general denial and not guilty, and then sets forth his intervention, pleading the debt and the deed of trust and for foreclosure. The mortgage company pleaded general denial and not guilty. The administrators individually disclaimed, but as administrators pleaded that Schmoker was not the record holder of any lien within four months after their appointment; that the Empire Mortgage Company had duly filed a claim, which was allowed, but did not bring forward the Schmoker claim; that they sold the property under orders of the court and applied the proceeds to the expenses of administration; that intervener's claim was not properly...