Robertson v. Lee

• Decision Date: 09 April 1921
• Docket Number: (No. 8515.)
• Citation: 230 S.W. 730
• Parties: ROBERTSON et al. v. LEE et al.
• Court: Texas Court of Appeals

230 S.W. 730

ROBERTSON et al. v. LEE et al.

(No. 8515.)

Court of Civil Appeals of Texas. Dallas.

April 9, 1921.

Rehearing Denied May 14, 1921.

Error from District Court, Dallas County; Kenneth Force, Judge.

Action by W. B. Lee and others against William F. Robertson and others. Judgment for plaintiffs, and defendants bring error. Affirmed.

W. F. Robertson, J. G. Wilson, and Rasbury, Adams, Stennis & Hamee, all of Dallas, for plaintiffs in error.

Burgess, Burgess, Chrestman & Brundidge, of Dallas, for defendants in error.

HAMILTON, J.

Defendants in error sued plaintiffs in error in trespass to try title, seeking recovery of title and possession of a parcel of land situated in the city of Dallas. It was alleged that defendants in error plaintiffs below, owned the land in fee simple; that Lee owned an undivided four-fifths interest and the other parties plaintiffs, who composed the partnership firm of Sanger Bros., owned the other one-fifth interest. Plaintiffs in error, defendants below, demurred to the petition, and answered by plea of not guilty. The case was tried before the court without a jury, and judgment was rendered for defendants in error, from which judgment plaintiffs in error prosecute this appeal by writ of error.

Upon motion of defendants in error this court, on October 23, 1920, struck out all bills of exceptions contained in the record because they were filed after the expiration of the period granted in the order of court overruling the motion for a new trial within which to file them, which was 60 days after expiration of the term; the statute requiring them to be filed within 30 days after adjournment in the absence of an order of court extending the period.

The first five assignments of error in plaintiffs in error's brief are based upon the bills of exceptions so stricken out, and therefore they will not be considered.

The only remaining assignments are the sixth and seventh. They are presented in group in plaintiffs in error's brief, and are as follows:

"(6) The court erred in rendering judgment in said case in favor of the plaintiffs and against the defendants for the land and premises described in plaintiffs' petition, and for the rent and hire of said property for the reason the evidence was insufficient to support a judgment, in this: There was no evidence of the title of the various members of the firm of Sanger Bros., made parties plaintiff in said suit, from whom, where, or how they acquired title to any part of said land in controversy, or that they had any interest in the rents and hire of said property, while plaintiffs' petition alleged that they were the owners of a certain one-fifth interest in said land.

"(7) The court erred in rendering judgment in favor of the parties named as plaintiffs in said petition and against the defendants for the land in controversy and the rents and hire of said land, because said judgment was not supported by the law and the evidence in this: There was no evidence introduced to show that the members of the firm of Sanger Bros., mentioned in said petition, ever acquired any title to any part of said land, and no papers, deeds, or records were introduced that indicated in the remotest way that said firm or any of its members had ever at any time owned, or do now own, or ever acquired title to said land or any part of the same."

These assignments of error are followed by propositions appropriate to them. But under the uncontroverted evidence contained in the record, and there being no findings of fact, we do not think they can be sustained.

On the 3d day of April, 1917, there existed a deed of trust against the property to secure an indebtedness of $4,500. This was a first lien. There also existed a deed of trust evidencing a second lien inferior and subject to the first lien, and which secured nine notes each for $22.50 and a note for $14.60, and also secured the keeping of the provisions of the first lien deed of trust. Both deeds of trust were executed by B. G. Howard and wife, but were made to different trustees. On April 3, 1917, six of the small notes secured by the second lien deed of trust had been paid, but the others had not, and one of them had matured on November 1, 1916, and default in payment thereof had been made. Default in payment of an installment of interest due November 1, 1916, upon the $4,500 note, in payment of certain other demands chargeable against the property, had also been made by the debtors. The beneficiary under the second and inferior deed of trust paid the past-due interest on the $4,500 note, which amounted to $157.50, and also paid certain sums for insurance premiums required by the first lien deed of trust. The second lien deed of trust provided that should the beneficiary thereunder pay any interest payment or other part of the debt secured by the first lien, or pay any tax, insurance, or other demand chargeable against the property, and payable by the debtor under the terms of the first deed of trust, then such sum should at once become due and payable to the beneficiary of the second deed of trust.

The trustees under the second lien deed of trust, in conformity with the provisions of that instrument on April 3, 1917, sold the...