Shelton v. O'Brien

• Decision Date: 16 June 1926
• Docket Number: (No. 632-4493.)
• Citation: 285 S.W. 260
• Parties: SHELTON v. O'BRIEN.
• Court: Texas Supreme Court

285 S.W. 260

SHELTON v. O'BRIEN.

(No. 632-4493.)

Commission of Appeals of Texas, Section B.

June 16, 1926.

Error to Court of Civil Appeals of Seventh Supreme Judicial District.

Action by J. J. Perkins and others against W. O'Brien and others, in which James M. Shelton was substituted for one of the defendants. Judgment for plaintiff was reversed and remanded by the Court of Civil Appeals (276 S. W. 308), and James M. Shelton brings error. Affirmed.

Lumpkin & Trulove and Underwood, Hamilton & Johnson, all of Amarillo, for W. R. Ozier.

Madden, Adkins & Pipkin, of Amarillo, for Guaranty State Bank.

Reeder & Reeder, of Amarillo, for J. J. Perkins.

Carl Gilliland, of Hereford, and Arnold & Arnold, of Graham, for O'Brien and others.

SHORT, J.

Since the writ of error was granted to settle the conflict in the opinion of the majority of the Court of Civil Appeals and the dissenting opinion, both of which are reported in 276 S. W. 309, 321, and since we have concluded that the opinion rendered by the majority of the court, written by Chief Justice Hall, correctly construes the law of the case under the facts, we do not deem it necessary to write extensively on the subject. The statement in the majority opinion is very full, and we find it substantially correct, except the following:

"The Amarillo National Bank was never made a formal party, but, together with the Interstate Cattle Loan Company, the Guaranty State Bank, and Bivins, appeared and answered."

The Amarillo National Bank did not appear and answer, though the other parties mentioned did. The plaintiff in error in his application for the writ of error also makes a statement of the case which we find substantially correct, and, except as noted above, in no wise different from that found in the opinion of the majority of the Court of Civil Appeals, which for purposes of this opinion we embrace as a part of it, to wit:

"Your petitioner would show that this suit is a suit which originated in the district court of Potter county, Tex., in cause No. 4098 on the docket of said court, wherein J. J. Perkins brought suit on February 23, 1924, against W. R. Ozier, the Amarillo National Bank, Interstate Cattle Loan Company, W. O'Brien, and the Interstate National Bank et al., to recover the amount due plaintiff on certain vendor's lien notes executed by the said W. R. Ozier in favor of R. B. Masterson in part payment of about 10,000 acres of land situated in Moore county, Tex., and to foreclose the vendor's lien, and also a deed of trust lien given in addition thereto on said lands, as against each and all of the defendants in said suit, said vendor's lien having been transferred and assigned by the said R. B. Masterson to the plaintiff J. J. Perkins after the maturity thereof.

"After the execution of the above mentioned vendor's lien notes, by W. R. Ozier in favor of the said R. B. Masterson, the said Ozier executed a deed of trust to Ura Embry, trustee, for the use and benefit of the National Bank of Commerce and W. O'Brien, on about 5,000 acres of said 10,000-acre tract of land, and known and designated as the west one-half thereof, to secure certain indebtedness owing by the said Ozier to the National Bank of Commerce and the said W. O'Brien, which deed of trust was filed for record in Moore county, Tex., on September 14, 1921, and was given subject to the lien held by Masterson. Afterwards, W. O'Brien sold and transferred his notes, secured by said deed of trust, to the National Bank of Commerce, and on Aug. 29, 1922, the National Bank of Commerce filed suit in the district court of Potter county, Tex., against W. R. Ozier, seeking judgment on the amount of its debt, principal, interest, and attorney's fees, as evidenced by said notes mentioned and described in the deed of trust executed by Ozier to Embry, and to foreclose said deed of trust lien upon the west one-half of said 10,000-acre tract of land, known as the Ozier Ranch.

"After the filing of the suit just mentioned by the National Bank of Commerce against Ozier, and, to wit, on September 2, 1922, the said W. R. Ozier executed and delivered a deed of trust upon all of said 10,000-acre tract of land, known as the Ozier Ranch, to T. A. Curtis as trustee, for the purpose of securing Lee Bivins, the Guaranty State Bank of Amarillo, Interstate Cattle Loan Company, Interstate National Bank, National Bank of Commerce of Amarillo, Amarillo National Bank of Amarillo, Tex., and other creditors, in the payment of the debts owing said beneficiaries by the said W. R. Ozier, which deed of trust was duly recorded in the deed of trust records of Moore county, Tex., on September 8, 1922. The National Bank of Commerce on November 7 1922, filed an amended petition in this suit against W. R. Ozier, wherein it made the said T. A. Curtis, trustee in the above mentioned deed of trust, a party defendant to said suit, but the beneficiaries named in said Curtis deed of trust were not made party defendants in said suit; however, four of the beneficiaries named therein, to wit, Lee Bivins, the Guaranty State Bank of Amarillo, Tex., the Interstate Cattle Loan Company, and the Interstate National Bank, intervened in said suit, setting up their debts and liens.

"On April 12, 1923, a judgment was rendered in said suit of the National Bank of Commerce v. W. R. Ozier et al., by the terms of which said bank recovered a judgment for the sum of $35,281.30, with interest thereon at the rate of 10 per cent. per annum until paid, against W. R. Ozier, subject, however, to the Masterson vendor's lien notes, and obtained a foreclosure of the deed of trust lien dated August 12, 1921, upon the west one-half of the said Ozier lands, against all of the defendants named in said suit, as well as the interveners, which judgment directed that an order of sale issue to the sheriff of Moore county, Tex., commanding him to seize and sell said tract of land as under execution, and that he apply the proceeds thereof to the payment of all costs and to plaintiff's debt, etc. The order of sale, as directed in said suit, was issued, and said tract of land was sold thereunder by the sheriff of Moore county, Tex., to the said W. O'Brien for the sum of $25,000, he being the highest bidder at said sale, and said land was deeded to him by the sheriff of Moore county, Tex. Thereafter the said W. O'Brien purchased from the National Bank of Commerce the deficiency judgment rendered in its favor in said suit against W. R. Ozier.

"In the case of the National Bank of Commerce v. Ozier et al., the interveners, the Guaranty State Bank of Amarillo, Lee Bivins, the Interstate Cattle Loan Company, and the Interstate National Bank, established their indebtedness against the said W. R. Ozier, as well as established their lien upon the Ozier Ranch, as evidenced by the Curtis deed of trust of date September 2, 1922, subject, however, to the Masterson vendor's lien notes, as well as to the deed of trust lien held by the National Bank of Commerce against the west one-half of the Ozier Ranch.

"In the instant suit J. J. Perkins, as plaintiff therein, sued the said W. R. Ozier to recover the amount due on the Masterson vendor's lien notes, which had been transferred by Masterson to plaintiff, and to foreclose his vendor's lien and deed of trust lien on said 10,000-acre tract of land as against all the parties defendant. In said Perkins' suit the said Lee Bivins, W. O'Brien, the Amarillo National Bank, the Interstate National Bank, the Interstate Cattle Loan Company, ...