Robinson v. Smith

• Decision Date: 06 May 1937
• Docket Number: No. 1863.,1863.
• Citation: 130 S.W.2d 381
• Parties: ROBINSON v. SMITH.
• Court: Texas Court of Appeals

130 S.W.2d 381

ROBINSON v. SMITH.

No. 1863.

Court of Civil Appeals of Texas. Waco.

May 6, 1937.

Rehearing Denied July 6, 1939.

Appeal from District Court, Seventy-Fourth District, McLennan County; Giles P. Lester, Judge.

Suit by Norman H. Smith against Charles Robinson for rents, wherein the defendant filed a cross-action. From an adverse judgment, the defendant appeals.

Affirmed.

Conforming to answer to certified question, 128 S.W.2d 27.

Sleeper, Boynton & Kendall, and John B. McNamara, all of Waco, for appellant.

Albert C. Johnston, of Waco, for appellee.

ALEXANDER, Justice.

In the above cause, Norman H. Smith brought suit against Charles Robinson to recover rents for the use of a certain business house in the city of Waco. Robinson alleged that he owned the superior title, the vendor's lien and deed of trust lien on said property to secure the payment of a large indebtedness against the same. He denied liability for the rent, and in the alternative sought to have Smith's claim for unpaid rents applied as a credit on his lien indebtedness and to have his lien for the balance foreclosed. A trial was had before a jury and a judgment was rendered for Smith for unpaid rents for the sum of $4725, and judgment was rendered in favor of Robinson establishing the amount of his lien indebtedness and foreclosing same on the property, but Robinson was denied the right to offset Smith's judgment for rents against Robinson's lien indebtedness against the property. Robinson appealed.

The record discloses that in 1926, one Linton conveyed the real property in question to Norman H. Smith, subject to a prior outstanding lien in the sum of $18,000, and retained a vendor's lien thereon to secure the payment of three additional notes in the total sum of $8500, which notes were made payable to Trippett and Boggess, it being recited in the deed that the latter had advanced purchase money to the amount of said notes and that the vendor's lien was retained against the property in favor of Trippett and Boggess to secure the payment of said notes. In 1927, Trippett and Boggess assigned and transferred said notes, with all liens securing the same, together with all right, title and interest owned by them in the property, to Mrs. B. J. Huttner. During the same year, Norman H. Smith renewed the indebtedness by executing a new note to Mrs. Huttner in the sum of $8500, due in five years, and securing the same by a deed of trust on the property. In this connection, it should be noted that Robinson claimed to have been the owner of said indebtedness and the lien securing the same and that he handled the transaction in the name of Mrs. Huttner merely for his own convenience. This deed of trust contained no express provision conferring on the holder of the indebtedness secured thereby the right to take possession of the property or to impound the rents therefrom in the event of default. In March 1933, Smith was adjudged a voluntary bankrupt and he surrendered possession of the building in question to the trustee in bankruptcy but claimed the building and the lot upon which it was situated as exempt to him as a business homestead. In the bankruptcy proceedings the stock of merchandise formerly belonging to Smith and situated in the building was sold by the trustee in bankruptcy to Robinson, and Robinson, with the consent of the trustee in bankruptcy, entered into possession of the building on April 20, 1933. Smith was employed by Robinson as a clerk in the store for about four weeks. On May 31, 1933, in the bankruptcy proceedings, the building was set aside to Smith as his business homestead, and on the same day Smith notified Robinson that if he remained in possession of the store building, he would be expected to pay rent thereon at the rate of $200 per month. Smith testified that Robinson advised him that he would not pay rent and refused to give possession but declined to inform Smith by what authority he was withholding possession of the property. Smith later received his discharge in bankruptcy. In April 1934, Mrs. Huttner executed and delivered to Charles Robinson an assignment of the note and lien in question, together with all interest owned by her in the property, it being recited in the transfer that the said Robinson had at all times been the equitable and beneficial owner of said indebtedness and that the assignment was executed for the purpose of placing the legal title in him. This assignment was duly recorded in May 1935. Robinson remained in possession of the building up to the time of the trial of this case in November 1935, a period of 31½ months, without paying any rent. The property will not sell for enough to pay Robinson's debt and the prior outstanding lien thereon. The jury, in answer to special issues, found that Robinson was not in possession of the building with the acquiescence of Smith, and that the reasonable rental value of the property was $150 per month; that on May 31, 1933, Smith told Robinson that he would demand of him the sum of $200 per month as rent as long as Robinson occupied the premises; that the note payable to Mrs. Huttner and secured by a lien on the property was purchased with the money of Charles Robinson; that at the time Robinson had the note and deed of trust taken in the name of Mrs. Huttner "it was the intention of Charles Robinson that said note and lien should be the property of Mrs. Huttner"; that Mrs. Huttner did not accept the note and lien as her property; and that the assignment of said note and lien from Mrs. Huttner to Robinson was not secured in good faith.

Appellant contends that the trial court erred in refusing to offset Smith's claim for rent against Robinson's lien indebtedness against the property, instead of awarding Smith a personal judgment against Robinson for said rents.

In the first place, it should be noted that the ordinary relation of mutual...