Reed v. Turner

• Decision Date: 30 November 1972
• Docket Number: No. 660,660
• Citation: 489 S.W.2d 373
• Parties: Byron E. REED, Jr., et al., Appellants, v. Rosamond Dean TURNER et al., Appellees.
• Court: Texas Court of Appeals

Page 373

489 S.W.2d 373

Byron E. REED, Jr., et al., Appellants, v. Rosamond Dean TURNER et al., Appellees.

No. 660.

Court of Civil Appeals of Texas,

Tyler.

Nov. 30, 1972.

Rehearing Denied Dec. 28, 1972.

McGinnis, Lochridge & Kilgore, Robert C. McGinnis and John W. Stayton, Jr., Austin, for appellants.

Bath, Turner & Patterson and Dean W. Turner, Henderson, for appellees.

DUNAGAN, Chief Justice.

This is a trespass to try title suit brought to determine the title of a tract of land of 150 1/2 acres located in Rusk County, Texas. This suit was instituted in the 4th District Court of Rusk County, Texas, by appellees, Rosamond Dean Turner and the Citizens National Bank of Henderson, Texas, against the appellants, Byron E. Reed, Jr., Clyde S. Reed, Betty Reed Simpson and husband, William Simpson, Lucille Reed Highland, and Arthur F. King, Ralph W. Lucas and Clyde S. Reed as Trustees of Reed Royalty Trust. Appellants answered by a plea of 'not guilty.' After a non-jury trial, the trial court rendered judgment in favor of appellees-plaintiffs for the full fee simple title to the land in question in this suit. All defendants have appealed.

No findings of fact or conclusions of law were filed and none requested.

There are no factual disputes in this case. The evidence at the trial consisted entirely of stipulations of the parties, exhibits containing instruments affecting title to the land in controversy and the undisputed testimony of a surveyor. All evidence was admitted without any objections.

Appellants' appeal is based upon two points of error in which they assert that the trial court erroneously rendered judgment for the appellees for the full fee simple title because (1) the undisputed evidence shows that appellants own an undivided one-half interest in the minerals and that said undivided interest was not disturbed by foreclosure of the vendor's lien reserved in the deed from J. G. Stone to Jess Williams conveying the property in question, (2) the judgment in a prior trespass to try title suit involving the same land awarding to the predecessors in title of the appellees an undivided one-half interest in the minerals as against the appellants and that the prior judgment is res judicata as to the rights of the parties in the suit at bar.

Appellees contend by their counterpoints that the trial court did not err in rendering judgment for them for the full fee simple title to the land because (1) the undisputed evidence shows that appellants' one-half mineral interest had been foreclosed in the 1923 suit, (2) appellants' predecessors in title acquired no interest therein by reason of the prior judgment in favor of appellees' predecessors in title for an undivided one-half interest in the minerals, and (3) appellants did not plead or present the defense of res judicata in the trial court and cannot raise it for the first time on this appeal. Appellants concede that the title to the surface is owned by the appellees. Only title to one-half of the minerals is in dispute.

The appellees also argue that the outstanding mineral interest claimed by Reed Royalty Trust, et al., in this case was theretofore foreclosed in 1923, and having failed to avail themselves of any right of redemption, especially after the suit was filed in 1937 when they were given notice of the same, appellants cannot now claim any possible interest in such minerals.

The undisputed evidence shows a common source of title in J. G. Stone to the land in question. Stone on September 13, 1919, conveyed the land to Jess Williams and reserved a vendor's lien in the deed of conveyance to secure such money notes given by Williams. On January 28, 1920, Williams conveyed one-half of the minerals to G. S. Strong who conveyed the same to Byron E. Reed on June 24, 1920.

Appellants' title arises out of the conveyance by Williams to G. S. Strong.

Thereafter, in 1923 Stone sued Williams for foreclosure of the vendor's lien. Reed was not made a party to this suit. Pursuant to judgment in said cause foreclosing said vendor's lien and order of sale, the sheriff conveyed the land to J. G. Stone. Appellees-plaintiffs are J. G. Stone's successors in title. Neither Strong nor the appellees were parties to the foreclosure suit.

Appellants under their first point of error point out to us that the vendor's lien was foreclosed as it existed on the property owned by Williams at the time of the foreclosure judgment in May of 1923; that this was after the date of the conveyance by Williams to Strong of the undivided one-half mineral interest, which occurred in 1920.

Appellants say the question 'is whether or not Stone's foreclosure of his vendor's lien against Williams, or Stone's subsequent trespass to try title suit, restored that interest to him and to the plaintiffs (appellees) in this suit.' Appellants' first point of error deals with this question.

Appellants' contention is grounded upon the following recitations:

1. The recital in the judgment that 'the lien as it existed on the 12th day of May A.D. 1923, on the above described tract of land be and the same is hereby foreclosed . . .' (Emphasis ours.)

2. The following recital in the order of sale: '. . . as said lien existed on the 1st day of May A.D. 1923 . . .'

3. The following recitals in the sheriff's deed:

'That whereas by a certain order of Sale, issued out of the District Court of the 4th Judicial District of Texas, of the County of Rusk in Cause numbered 6908, on the docket of said court, in favor of J. G. Stone vs Jess Williams, on a certain judgment and decree of sale rendered in said court on the 1st day of May A.D. 1923, and directed and delivered to me as Sheriff to Rusk County commanding me to seize and sell as under execution the premises described in said order of sale, I, Geo B. Hays, Sheriff as aforesaid, did upon the 21 day of June A.D. 1923, in obedience to said order of sale, seize, and levy upon All the estate, right, title and interest which the said defendant on the 21 day of June A.D. 1923, so had, of in and to, and since said time had of in and to the premises hereinafter described . . .

'Now, therefore, in consideration of the premises aforesaid, and said judgment and order of sale and of the payment of the said sum of two hundred fifty and no/100 dollars, the receipt of which is hereby acknowledged, I, Geo. B. Hays, as the Sheriff as aforesaid, have sold and by these presents do grant, and convey unto the said J. G. Stone, all the estate, right, title and interest which the said Jess Williams, had on the 1st day of May A.D. 1923 or at any time afterwards of in and to the following described premises, as described in the said order of sale, viz: Being situated in the county of Rusk and State of Texas, about 3 1/2 miles North 70 E from the town of Henderson, Texas and being a part of the A. Marr Survey patented to Charles Chevlier and bounded as follows to-wit:' (Emphasis ours.)

Appellants argue that the italicized portions of the sheriff's deed clearly show 'that the foreclosure was of the vendor's lien as it existed at various dates in May and June 1923 on the land then owned by Williams on those dates, that such land owned by Williams in 1923 was what was ordered sold and that it was in fact what was sold and conveyed by the sheriff to J. G. Stone in obedience to the judgment and order of sale. Thus, the undivided one-half mineral interest of the predecessors in title to the present defendants (appellants) was not disturbed by the foreclosure.' We do not agree.

It is appellants' contention that it is shown by the judgment, order of sale, and the sheriff's deed that the foreclosure was only on the land owned by Williams on the various dates therein shown and that since Williams conveyed the mineral interest to Strong long prior to the dates mentioned in the above recitals, therefore the one-half mineral interest conveyed to Strong was not included in the foreclosure proceedings.

We have carefully examined the 1923 foreclosure judgment and have concluded that it foreclosed the lien on the entire tract of land therein described, including the one-half mineral interest previously conveyed to Strong by Williams. Whiteside v. Bell, 162 Tex. 411, 347 S.W.2d 568 (1961); State v. Forest Lawn Lot Owners Ass'n, 152 Tex. 41, 254 S.W.2d 87 (1953); Barr v. Wall, 265 S.W.2d 208 (Tex.Civ.App., Texarkana, 1953, writ ref., n.r.e.); 58 Tex.Jur.2d sec. 409, pp. 644--647. The vendor's lien notes having been unpaid, the vendor's lien was still outstanding on May 1, 1923, as it was on September 13, 1919, when the vendor's lien was created. Where the purchaser of the land was the holder of the superior title, as here, such purchaser is vested with the legal title to the land. The subvendee, not being a party to the foreclosure suit, had the right to redeem the property by paying the notes within a reasonable time or instituting suit setting up such equities. This right of redemption never being asserted or exercised is at this late date lost. State v. Forest Lawn Lot Owners Ass'n, supra; Barr v. Wall, supra; Revard v. Wood, 156 S.W.2d 561 (Tex.Civ.App., San Antonio, 1941, writ ref., w.o.m.). The superior title to the whole tract rested in Stone on May 1 and June 21, 1923, and prior thereto, and remained intact. Barr v. Wall, supra. Appellants' first point of error is overruled.

After appellees' interest in the minerals was foreclosed in 1923, the full fee simple title, including all the minerals, was vested in the Stones.

Thereafter on March 24, 1932, the Stones conveyed one-half of the minerals to W. E. Wiley, Trustee, for a term of fifteen years with the usual provisions concerning term royalty. It was stipulated in the case at bar that there was no production on the property here involved until 1967. However, it is agreed that this conveyance had no bearing on the instant case.

In January 1937 Stone and his wife filed a trespass to try title suit against the Reed Royalty Trust and...