Phillips v. Whiteside

• Decision Date: 27 March 1968
• Docket Number: No. 80,80
• Citation: 426 S.W.2d 350
• Parties: Celeste PHILLIPS, Appellant, v. Irene Seaborn Jones WHITESIDE, Appellee. . Houston (14th Dist.)
• Court: Texas Court of Appeals

Page 350

426 S.W.2d 350

Celeste PHILLIPS, Appellant, v.Irene Seaborn Jones WHITESIDE, Appellee.

No. 80.

Court of Civil Appeals of Texas Houston (14th Dist.).

March 27, 1968.

Pritchett Harvey, Houston, for appellant.

U. S. Ardoin, Houston, for appellee.

BARRON, Justice.

This is an action of trespass to try title filed by plaintiff-appellant, Celeste Phillips, against Irene Seaborn Jones Whiteside, defendant-appellee, for title and possession of the south one-half of LotNo. 20 in BlockNo. 5 of Blossom Heights, Section One, a subdivision of the E. P. Whitehead Survey in Harris County, Texas.At the conclusion of the testimony the trial court withdrew the case from the jury and rendered judgment in favor of Mrs. Whiteside, appellee, and decreed that Mrs. Phillips take nothing.Mrs. Phillips has duly perfected her appeal from the judgment below.

The evidence wholly fails to make a case in favor of appellant.Documents were introduced into evidence showing that on March 20, 1954, the property was deeded by one Carl F. Modglin(agreed to be the common source of title) to Celeste S. Phillips, a widow.On the same date Mrs. Phillips executed a deed of trust mortgage to Ralph B . Lee, trustee for Carl F. Modglin, to secure the payment of one certain vendor's lien note in the principal sum of $2,961.49, payable in monthly installments of not less than $35.00 each, including interest, the first installment being due on or before April 20, 1954, and providing for attorney's fees and for acceleration of maturity in event of default, the note providing that the holder shall have the option 'without demand or notice to the marker' to declare the note 'immediately due and payable and may thereupon foreclose the liens given to secure its payment.'The deed of trust was given as additional security and was cumulative of the vendor's lien retained in the deed.On October 3, 1956, Ralph B . Lee, trustee, conveyed to Carl F. Modglin the property above described.It was recited that default had been made in the payment of the note and that the deed of trust was being foreclosed according to its terms.The deed of the trustee recited that Modglin purchased the property at public sale for the sum of $100.00 .All necessary recitals for foreclosure were recited in the trustee's deed and the deed appears to be regular in all respects.On October 24, 1956, Modglin and Irene Seaborn Whiteside executed a contract of sale of the property involved to appellee for a total consideration of $2,858.02, reciting a cash payment to Modglin of $250.00 by appellee.On May 21, 1964, Modglin, pursuant to the contract, executed a general warranty deed to Irene Seaborn Whiteside, a feme sole, covering the property involve, and the deed was duly filed and recorded.

The testimony is somewhat difficult to understand.However, the substance of the testimony was the appellant's former husband had agreed to go into a partnership with appellee in the cafe business, that the former husband left and returned to California.The implication was that there was some type of oral agreement between the parties and that the former husband, Jones, did not fulfill his agreement.The record shows, however, that after the foreclosure, appellant, for some time, paid rent to appellee, Mrs. Whiteside, on the property involved.Sh...