Roeser & Pendleton v. Stanolind Oil & Gas Co., 5461.

• Decision Date: 15 March 1940
• Docket Number: No. 5461.,5461.
• Citation: 138 S.W.2d 250
• Court: Texas Court of Appeals
• Parties: ROESER & PENDLETON, Inc., v. STANOLIND OIL & GAS CO.

138 S.W.2d 250

ROESER & PENDLETON, Inc., v. STANOLIND OIL & GAS CO.

No. 5461.

Court of Civil Appeals of Texas. Texarkana.

March 15, 1940.

Rehearing Denied March 21, 1940.

Appeal from District Court, Marion County; Claude Hutchings, Judge.

Suit in trespass to try title by the Stanolind Oil & Gas Company against Roeser & Pendleton, Inc., and others. From a judgment for the plaintiff, the named defendant appeals.

Affirmed.

Thompson & Barwise, Sterling C. Holloway, and Luther Hudson, all of Fort Worth, for appellant.

Turner, Rodgers & Winn and F. J. Scurlock, all of Dallas, and Clay Tallman and Donald Campbell, both of Tulsa, Okl., for appellee.

JOHNSON, Chief Justice.

This suit was filed by appellee, Stanolind Oil & Gas Company, in trespass to try title to the 7/8 leasehold mineral interests in ten acres of land located in Marion County, against Sterling C. Holloway, M. H. Overlees, and Roeser & Pendleton, Inc. Holloway and Overlees disclaimed any interest in the land and were dismissed from the suit. Roeser & Pendleton, Inc., answered by general demurrer, general denial and a plea of not guilty. Trial to the court without a jury resulted in judgment for plaintiff, from which defendant has appealed.

The facts material to the issues involved in the appeal are not disputed. Flesh and Hootkins constitute the common source of title. On or about December 17, 1936, M. H. Overlees, a broker, negotiated the sale of the lease from Flesh and Hootkins to appellee. Because appellee did not want the fact known that it was at that time purchasing minerals in that particular area, and though appellee was paying the entire consideration for the lease, the name of M. H. Overlees, with his consent, was inserted as grantee in the conveyance from Flesh and Hootkins, and on the same occasion Overlees executed a conveyance with the name of the grantee left blank. The deed executed by Flesh and Hootkins to Overlees and the deed executed by Overlees to blank grantee were attached to a draft drawn on appellee for $3,000, the purchase price of the land, in favor of Flesh and Hootkins, through the Fort Worth National Bank and was deposited in the First National Bank in Dallas for collection. In due course the draft was paid by appellee and the instruments were delivered to it. Overlees never paid or agreed to pay any portion of the purchase money and has never claimed to own any right, title or interest in the land, but merely held the naked legal title in trust for appellee. On December 31, 1936, appellee filed the deed executed by Flesh and Hootkins to Overlees for record in the office of the County Clerk of Marion County, and it was duly recorded.

On March 30, 1929, prior to the matters above mentioned, Roeser & Pendleton, Inc., obtained a judgment against M. H. Overlees for the sum of $4,202.02. Execution was issued on the judgment and levied upon certain personal property, from the sale of which the judgment was credited with $57.93 and the execution duly returned. On February 8, 1937, an abstract of the judgment was filed, recorded and indexed in Marion County. On February 25, 1937, an alias execution was issued and levied on the land here involved as the property of M. H. Overlees. At the time the abstract of judgment was filed and at the time the levy under the execution was made, Roeser & Pendleton, Inc. (appellants here), had no notice of appellee's interest in the land. On March 9, 1937, or some date prior thereto, the name of appellee, Stanolind Oil & Gas Company, was inserted as grantee in the deed above referred to as executed to blank by Overlees, and the instrument was on that date filed for record and recorded in Marion County, and appellant was on the same date given actual notice of appellee's interest in the land. Thereafter, on April 6, 1937, a sale was made under the levy above mentioned, to appellant for $1,000, credited on its judgment against Overlees.

Appellant contends that by recording its abstract of judgment at a time when it had no notice of appellee's interest in the land and when the record title thereto stood in the name of Overlees and when the deed executed by Overlees had not been recorded, that appellant fixed a judgment lien upon the land under R. S. Article 5449, Vernon's Ann.Civ.St. art. 5449, and that by the foreclosure of said lien in the issuance of execution, levy and sale of the land as the property of Overlees, appellant acquired title protected by force of the registration statute, Article 6627, as of the date of the recording of its abstract of judgment; that appellant thus holds the position of a judgment lien creditor under said registration statute, without notice at the time of fixing its lien, and that appellee can not assert its title, either legal or equitable, in this suit against appellant, because it is shown that Overlees had conveyed the legal title to appellee, and which deed was not of record at the time appellant fixed its lien.

Article 6627, under which appellant bases its rights, reads as follows: "All bargains, sales and other conveyances whatever, of any land, tenements and hereditaments, whether they may be made for passing any estate of freehold of inheritance or for a term of years; and deeds of settlement upon marriage, whether land, money or other personal thing; and all deeds of trust and mortgages shall be void as to all creditors and subsequent purchasers for a valuable consideration without notice, unless they shall be acknowledged or proved and filed with the clerk, to be recorded as required by law; but the same as between the parties and their heirs, and as to all subsequent purchasers, with notice thereof or without valuable consideration, shall be valid and binding."

Appellee does not dispute that appellant was without notice of appellee's claim at the time appellant recorded its judgment and that appellant is in the position of a judgment lien creditor, under Article 6627, and that the deed executed by Overlees not being of record at the time appellant recorded its judgment lien, must under said statute, in a suit between appellant and appellee, be treated as void. But appellee does dispute that appellant's lien attached to any interest in the land, because Overlees never then or at any other time owned any interest in the land and possessed no more than the mere naked legal title, which he held in trust for appellee, who by virtue of its payment of the purchase money became vested with the superior, equitable title, and that such equitable title was not subject to the registration statute.

Appellant's propositions may for convenience be grouped under two contentions which, stated in the reverse order to their arrangement in appellant's brief, are: (1) That no trust resulted from appellee's payment of the purchase money for the land, the title to which was taken in the name of Overlees, because Overlees on the same occasion conveyed the legal title to appellee by executing the deed to blank grantee and delivering it to appellee. (2) That the trust, if any resulted from appellee's purchase and payment of the consideration for the land, was completely executed and settled by Overlees' signing the deed in blank and delivering it to appellee who thereafter inserted its name therein as grantee, thus uniting the legal title with the equitable title in appellee, whereby appellee's equitable ownership of the land became subject to registration, and not having been recorded at the time appellant recorded...