Parks v. Worthington

• Citation: 109 S.W. 909
• Parties: PARKS et al. v. WORTHINGTON.
• Decision Date: 22 April 1908
• Court: Texas Supreme Court

Page 909

109 S.W. 909

PARKS et al. v. WORTHINGTON.

Supreme Court of Texas.

April 22, 1908.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Action by Minnie D. Worthington against Sallie L. Parks and others. From a judgment of the Court of Civil Appeals (104 S. W. 921), affirming a judgment of the district court for plaintiff, defendants bring error. Affirmed.

M. M. Parks (Smith & Gossett, of counsel on appeal), for plaintiffs in error. H. W. Peck, for defendant in error.

WILLIAMS, J.

This action was brought by the defendant in error to set aside certain deeds under which Mrs. Sallie L. Parks asserts title to the land in controversy, which is claimed by Mrs. Worthington under conveyance from her husband, W. M. Worthington, of date 9th day of March, 1903. In the district court and the Court of Civil Appeals the plaintiff, Mrs. Worthington, recovered, and this writ of error was granted on the application of Parks and wife.

The history of the controversy is as follows: W. M. Worthington, who is the brother of Mrs. Parks, married plaintiff in Dallas in January, 1903, and the two at once left for California and lived together until March when, for some unexplained reason, they agreed to separate. On the 9th day of March, 1903, W. M. Worthington executed to plaintiff a deed for the land, reciting that it was in consideration of one dollar and love and affection, "as well as for her better maintenance, protection, livelihood, and support." This deed was filed for record in Dallas county April 11, 1903. On the same day Worthington wrote to his sister, Mrs. Parks, at Dallas, telling her of the agreement to separate and of the conveyance. On the 14th day of March, 1903, B. R. Parks telegraphed Worthington: "Sign no papers." On the same day he sued Worthington before a justice of the peace of Dallas county on an account for $108 for money advanced, and sued out and caused to be levied on the land a writ of attachment, on the ground that Worthington was a nonresident. Worthington returned to Dallas, and on March 31, 1903, executed to Mrs. Parks a deed for the land for a recited consideration of $50. On the 22d of April, 1903, Worthington filed in the suit in the justice's court an answer waiving service of citation, admitting the indebtedness alleged by Parks, and agreeing that judgment might be rendered therefor. On the same day judgment was rendered for the debt and foreclosing the lien of the attachment, showing by its recitals that it was based wholly on Worthington's admission and agreement, and the land was sold June 2, 1903, under an order of sale, and purchased by and conveyed to Mrs. Parks for the sum of $115. Notice of this sale was posted, and a copy was mailed to Worthington. None was given to Mrs. Worthington, and she knew nothing of the attachment proceeding or of the sale before the latter took place. When she learned of the proceedings recited she brought this action June 16, 1903, to recover the property, and afterwards another sale was made of it. Before his marriage Worthington, on December 19, 1902, executed a deed of trust upon the property to secure a loan of $400 obtained from Mrs. Caruth, in which Parks, his brother-in-law, was made trustee, with power to sell in case of default. The principal of the note was payable in three years, but the interest was payable annually; and the deed of trust stipulated that in case of default in payment of any installment of interest the entire amount should mature at the option of the holder of the note, and the trustee, when requested by such holder, should sell the property as provided by statute for such sales. This deed was at once recorded. The deed further provided that the trustee's deed to the purchaser at such sale should be prima facie evidence of the recitals therein as to the default, the request to the trustee to sell, the advertisement, the proceedings at the sale, and of everything necessary to the validity thereof. On the 2d of February, 1904, Parks, as trustee, executed a deed for the property to his wife, reciting default in the payment of interest and other facts necessary to authorize a sale by the trustee, and reciting a sale on the 2d day of February, 1904, at which the property was struck off to Sallie L. Parks for the sum of $432, she being the highest and best bidder. The recitals showed full compliance with the deed in trust. This deed was put on record March 15, 1904. Mrs. Worthington had no actual knowledge of the existence of the deed of trust, nor of the sale thereunder, and no notice of it was given to her. While all of the proceedings recited, except the making of the deed in trust, were taking place, she was out of the state. The value of the property was $2,500. After the trustee's sale the plaintiff amended her pleadings, setting up the facts as to her title, alleging the different conveyances under which the defendants claimed the land, and charging that with notice of her title the defendants had conspired with her husband to defeat it and her right to redeem by procuring the several conveyances without any notice to her, alleging the inadequacy of the prices paid for it, offering to pay the sums necessary to redeem it, and praying that the deeds be set aside. In their answer the defendants set up the title of Mrs. Parks under the several conveyances stated, and asserted that she was an innocent purchaser without notice. In support of the title under the attachment proceeding they further alleged that the lien was acquired without notice of the deed to plaintiff, and also that this deed was supported by no consideration but love and affection. At the trial the facts as we have stated them were made to appear. The defendants did not testify, and introduced no evidence beyond...