Roberson v. Home Owners' Loan Corporation

• Decision Date: 11 January 1941
• Docket Number: No. 12952.,12952.
• Citation: 147 S.W.2d 949
• Parties: ROBERSON et ux. v. HOME OWNERS' LOAN CORPORATION et al.
• Court: Texas Court of Appeals

147 S.W.2d 949

ROBERSON et ux. v. HOME OWNERS' LOAN CORPORATION et al.

No. 12952.

Court of Civil Appeals of Texas. Dallas.

January 11, 1941.

Rehearing Denied February 1, 1941.

COPYRIGHT MATERIAL OMITTED

Error from District Court, Dallas County; Paine L. Bush, Judge.

Suit by the Home Owners' Loan Corporation against Marvin Roberson and wife on a note and for foreclosure of a trust deed, wherein the plaintiff vouched into the suit, J. E. Foster, Sr., and others who filed a cross-action against Marvin Roberson and wife. To review an adverse judgment, Marvin Roberson and wife bring error.

Affirmed.

Phillip O. Lopp, of Dallas, and G. R. Lipscomb and John L. Poulter, both of Fort Worth, for plaintiffs in error.

A. M. Frazier, E. L. Early, and John E. Whitmore, all of Dallas, and Joe T. Goodwin, of Austin, for defendants in error.

BOND, Chief Justice.

The defendant in error, Home Owners' Loan Corporation, plaintiff in the court below, instituted this suit in a district court of Dallas County against plaintiffs in error, as defendants, primarily for debt and foreclosure of deed of trust lien on the property in suit; and, alternatively, in trespass to try title. The parties will be designated herein as they were in the court below.

Plaintiff alleged, in substance, that it was a "corporate instrumentality of the United States of America," and that, on or about the 17th day of January, 1935, the defendants, Marvin Roberson and Catha Roberson, executed and delivered to it a promissory note for the principal sum of $9,500, bearing 5% interest, principal and interest payable in monthly installments of $75.12 per month until paid; and provided that, if default occurred in the payment of any installment of principal or interest, and continued for a period of more than ninety days, the holder of the note could declare the balance due, adding a reasonable attorney's fee if placed in the hands of an attorney for collection, or suit brought. Plaintiff alleged that, simultaneously with the execution and delivery of said note, the makers thereof executed and delivered a deed of trust, conveying the property in suit to a trustee for the use and benefit of plaintiff, to secure the payment of said indebtedness; and that the note and deed of trust were given in lieu and extension of the balance of $8,036.56, principal and accrued interest owing on ten of a series of fourteen certain notes, aggregating $9,000, fully described in a duly recorded deed of trust dated November 12, 1930, executed by Marvin Roberson and Catha Roberson to J. E. Foster, Jr., trustee; and $1,408.11, taxes reasonably levied, validly assessed, and past due against the above described property (in suit), as follows: State and county, $438.51; city, $969.60. The deed of trust, among other recitals and provisions usual in such instruments, recites that, "The grantors herein acknowledge said aforesaid liens to be valid and subsisting liens against the hereinafter described property (property in suit fully described), * * * and the holder of the note hereinafter described (note in suit) shall be and is hereby subrogated to all rights, liens, remedies, equities, superior title and benefits held, owned, and enjoyed by the owner or owners of said indebtedness, all of which is hereby acknowledged and confessed." Plaintiff further alleged the acceleration of the note and deed of trust under the privileges therein granted, and sought judgment for the amount due, principal, interest, and attorney's fees, and for foreclosure of its deed of trust; and, in the alternative, for title and damages under the usual allegations in suits for trespass to try title. Plaintiff vouched into the suit J. E. Foster, Sr., J. E. Foster, Jr., and J. E. Foster & Son, alleged that they were asserting some character of right, title, and interest in the property, inferior, however, to the lien of the Home Owners' Loan Corporation, and sought judgment of foreclosure to run also against the Fosters and their claim or lien against the property.

The defendants filed separate answers, consisting of general demurrer, general denial, and plea of not guilty; and the defendants Marvin Roberson and Catha Roberson further alleged specifically that they executed the note and deed of trust, but denied that they were in default in payment of installments, warranting acceleration of maturity as provided therein; the defendants, Fosters, acknowledged the inferiority of their lien to plaintiff's claim, and, in cross action, sought judgment against their co-defendant Marvin Roberson for the value of their note, and foreclosure of their deed of trust against both Marvin Roberson and wife, Catha Roberson.

The cause was tried to the court, without a jury, on plaintiff's primary suit for debt and foreclosure; its alternative plea in trespass to try title was abandoned. The evidence is uncontroverted: (1) That the defendants Marvin Roberson and Catha Roberson executed the notes and deed of trust in suit; (2) that said defendants were in default in the payment of installments for a period of more than ninety days; (3) that there was due and unpaid on said indebtedness, the sum of $9,257.32; (4) that there was due defendants J. E. Foster & Son, on their indebtedness, the sum of $232.55, secured by a deed of trust lien on the property in suit, inferior to plaintiff's deed of trust lien; and (5) that the aforesaid deed of trust liens were valid and subsisting liens against the property; accordingly, judgment was entered in favor of plaintiff, against defendant Marvin Roberson, for the...