Odom v. Empire Building & Loan Ass'n, 12800.

• Decision Date: 11 November 1939
• Docket Number: No. 12800.,12800.
• Parties: ODOM v. EMPIRE BUILDING & LOAN ASS'N et al.
• Court: Texas Court of Appeals

134 S.W.2d 1053

ODOM v. EMPIRE BUILDING & LOAN ASS'N et al.

No. 12800.

Court of Civil Appeals of Texas. Dallas.

November 11, 1939.

Rehearing Denied December 9, 1939.

Appeal from District Court, Grayson County; J. T. Suggs, Jr., Judge.

Action in trespass to try title and, alternately, for debt and foreclosure of deed of trust lien, by the Empire Building & Loan Association and others against Fay Odom. From a judgment for the plaintiffs, defendant appeals.

Affirmed.

Brame & Brame, of Sherman, for appellant.

Jesse F. Holt, of Sherman, for appellees.

BOND, Chief Justice.

On May 15, 1937, appellee, Empire Building & Loan Association, a corporation, chartered under and governed by the laws of Texas relating to building and loan associations, instituted this suit against appellant, Fay Odom, primarily, in trespass to try title and, alternately, for debt and foreclosure of deed of trust lien on certain described property then in the possession of appellant. At the conclusion of the testimony, the cause being tried to a jury, the court instructed a verdict for plaintiff for title and possession of the property in controversy. For convenience, we will designate appellee, Empire Building & Loan Association, as plaintiff, and appellant, Fay Odom, as defendant, as in the court below.

On March 13, 1928, defendant and her then husband, J. B. Odom (since separated by divorce), borrowed $2,750 from plaintiff, for the purpose of taking up, renewing, adjusting, and extending certain indebtedness and liens against the land involved in this suit; and, on the same date, a deed of trust was executed on the land by J. B. Odom, in which Fay Odom appears to have fully joined. The note provides for payment of principal and interest in equal monthly installments and expressly declares that "if default shall be made in the payment of any installment of interest hereon, or if any dues or fines on said shares shall remain unpaid when due, and if such default in interest, dues or fines shall continue for four months after due date, then, at the option of the legal holder hereof, the whole amount of this note then unpaid shall at once become due and payable." The deed of trust makes similar maturity acceleration, the usual provisions for sale by trustee, at public vendue at the courthouse door, etc., and recites: "The note herein and hereby secured is this day given in lieu of, substitution for, and in renewal and extension of the following: (here is listed the preceding indebtedness against the land, aggregating the sum evidenced by the renewal note). It is distinctly understood and agreed that the note herein and hereby secured is given for money this day advanced by the Empire Building & Loan Association, a corporation, of Dallas, Texas, in taking up, purchasing, renewing and extending the above mentioned indebtedness, and it is also understood and agreed that the taking of this Deed of Trust shall in no manner or way waive, affect, release or impair the validity of the liens securing the payment of said indebtedness and any and all liens securing the payment of same shall remain in full force and effect until the full and final payment of the note herein and hereby secured, and the said Empire Building & Loan Association, its successors and assigns, are hereby subrogated to all the liens, rights, titles, interest and remedies under and by virtue of any and all the above mentioned liens, and shall have the absolute and uncontrolled right of application of payments thereon. It being distinctly understood and agreed that the lien hereof, and any and all liens, securing the payment of the note herein and hereby secured, are first and prior liens upon the property herein conveyed. The note herein and hereby secured being this day given and accepted in renewal and extension for the accommodation, and at the special instance and request of, the grantors herein by the said Empire Building & Loan Association, the beneficiary herein, its successors and assigns, are hereby continued in all the rights, legal and equitable, conferred by the lien herein, and any and all the above mentioned liens, the existence and validity of all of which are hereby expressly acknowledged and confessed by the undersigned." The deed of trust also provides for acceleration in default of installments for shares of stock subscribed in the Corporation.

On August 4, 1931, in accordance with the terms of the above deed of trust, the property was sold by trustee to the Empire Building & Loan Association and, in accordance therewith, a trustee's deed was executed and delivered to the purchaser, reciting the authoritative facts provided in the deed of trust for the sale.

The sale to the Empire Building & Loan Association is challenged by defendant on several grounds: (1) That the deed of trust was never acknowledged by Fay Odom, who was at the time a married woman, occupying the property as her homestead; (2) that the sale of the property was not made at the courthouse of the county where the property was located, there being no designation of the place where the sale took place as a courthouse, by the Commissioners' Court of Grayson County; (3) that there existed no cause for acceleration of the indebtedness, therefore, the sale was premature; and, (4) that plaintiff's suit was barred by the three years' statute of limitation, Vernon's Ann.Civ.St. art. 5507, the defendant having occupied the premises, using and enjoying same as her homestead, for a period of more than three years prior to the institution of the suit. The assignments are followed by numerous applicable propositions, and we will discuss briefly all propositions under the contentions above stated.

On the first contention, defendant sought to prove, and offered testimony to the effect, that the deed of trust in question was signed by her only in the presence of her husband; that the notary's certificate to the deed of trust, purporting her acknowledgment thereof, was false, and that she did not appear before the notary public in the execution of it. The court refused the proffered testimony, for the reason that defendant's answer to plaintiff's suit did not raise the issue of such deficiency in the execution of the deed of trust. If such inquiry was a material issue in this case, the action of the court would require a reversal and remand of the cause. The defendant interposed a plea of "not guilty" to plaintiff's suit in trespass to try title. Under such plea, in pursuance of Article 7373, R.S., the defendant was entitled to give in evidence any lawful defense to defeat plaintiff's title, except the defense of limitation, which exception alone the statute provides shall be specially pleaded. Watson v. Aiken, 55 Tex. 536; Bracken v. Bounds, 96 Tex. 200, 71 S.W. 547; Barth v. Green, 78 Tex. 678, 15 S.W. 112; Pierce v. Texas Rice Development Co., 52 Tex.Civ.App. 205, 114 S.W. 857; Guest v. Guest, 74 Tex. 664, 12 S.W. 831; McKamey v. Thorp, 61 Tex. 648; Silverman v. Harmon, Tex.Civ.App., 250 S.W. 206; Taylor v. Ferguson, 87...