Shipley v. Pershing

• Decision Date: 12 April 1928
• Docket Number: (No. 2144.)
• Citation: 5 S.W.2d 799
• Parties: SHIPLEY v. PERSHING et al.
• Court: Texas Court of Appeals

5 S.W.2d 799

SHIPLEY v. PERSHING et al.

(No. 2144.)

Court of Civil Appeals of Texas. El Paso.

April 12, 1928.

Rehearing Denied May 3, 1928.

Appeal from District Court, Ector County; Chas. Klapproth, Judge.

Suit by W. A. Shipley against R. S. Pershing and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Thos. J. Coffee and M. Carter, both of Colorado City, and Royall G. Smith, of El Paso, for appellant.

Samuel K. Wasaff, of Ranger, and B. Frank Haag, of Midland, for appellees.

HIGGINS, J.

Appellant brought this suit in the district court of Ector county against R. S. Pershing and others not necessary to mention, in trespass to try title to recover a section of land in Crane county. At the time the suit was brought, the latter county was unorganized and attached for judicial purposes to Ector county. Upon trial without a jury, judgment was rendered for the defendants.

It was agreed E. R. Richardson was the common source of title. The plaintiff's chain of title is as follows:

General warranty deed from E. R. Richardson to R. S. Pershing, dated April 28, 1914, recorded May 11, 1914. The consideration was $10 cash and a note for $950, due in 5 years, executed by Pershing, payable to the order of Wimer-Richardson & Co., at San Antonio, Tex., to secure the payment of which a vendor's lien was expressly reserved in the deed. The deed conveyed such lien to the payee of the note.

On December 14, 1911, A. J. Greiner recovered a judgment against Pershing in the county court of Bexar county, upon which an alias execution was issued May 8, 1915, levied two days later, and the land sold by the sheriff on the first Tuesday in July, 1915, to W. A. Meador, for $25, and upon the same date the sheriff executed deed to Meador, filed for record July 9, 1915; a quitclaim deed from Meador to J. A. Ellis for a consideration of $75, dated and filed for record November 19, 1916; a special warranty deed from Ellis to W. A. Shipley, dated December 4, 1917, filed for record August 5, 1918.

The defendants' chain of title is as follows: Deed from E. R. Richardson to R. S. Pershing, above mentioned; general warranty deed from R. S. Pershing and L. B. Haines to American Realty & Loan Company, trustee, conveying the land in controversy and two other sections in consideration of $1, and subject to incumbrances aggregating $2,500, dated April 29, 1914, filed for record May 11, 1914. This deed does not disclose for whom the grantee held the land in trust. General warranty deed from American Realty & Loan Company, trustee, to Pershing Lumber Company, dated October 27th, 1914, filed for record October 30, 1920, conveying the three sections above mentioned, for a consideration of $10 and assumption of incumbrances totaling $2,500. This deed recited that the grantor, a corporation, acted "as trustee for L. B. Haines and R. S. Pershing." Petition in suit filed in the district court of Bexar county by E. R. Richardson against R. S. Pershing, American Realty & Loan Company, a corporation, as trustee, and R. S. Pershing and F. O. Pershing, as trustees for the Pershing Lumber Company, a corporation, incorporated under the laws of Tennessee, which the evidence aliunde shows was in liquidation, and against W. A. Shipley. The petition declares upon the $950 note described in the deed from Richardson to R. S. Pershing and for foreclosure of the vendor's lien retained in said deed. It was averred that plaintiff became the owner of the note by indorsement of Wimer-Richardson & Co. It is not shown by the petition, nor otherwise, that Richardson had been reinvested with the superior legal title to the land which had been transferred to Wimer-Richardson & Co., as above stated in the Richardson to Pershing deed.

It was averred Shipley's residence was unknown, which allegation was duly verified.

Judgment was sought against R. S. Pershing for the amount due upon the note and against all defendants for foreclosure of the vendor's lien upon the land in controversy. This petition was filed November 6, 1920. Judgment of the district court of Bexar county, dated March 9, 1921, rendered in the above suit against R. S. Pershing for $1,225.48, the amount due upon the note, with foreclosure of lien against R. S. Pershing individually, W. A. Shipley, and against R. S. and F. O. Pershing as trustees for the Pershing Lumber Company, foreclosing the vendor's lien upon the land in controversy as it existed on April 28, 1914. The suit as to the American Realty & Loan Company was dismissed.

The recitation in the judgment as to service upon Shipley was that the plaintiff, having appeared by his attorney, "and having suggested to this court that the defendant W. A. Shipley was cited by publication as required by law, W. E. Engel, Esq., of the San Antonio bar, was appointed by the court to represent the defendant W. A. Shipley." The attorney appointed to represent Shipley, filed an answer in his behalf.

Order of sale issued upon the above-mentioned judgment, which by the sheriff of Ector county was levied on the land in controversy May 26, 1921, under which the land was sold July 5, 1921, to E. R. Richardson for $375, to whom the sheriff executed a deed dated July 5, 1921; general warranty deed from E. R. Richardson to R. S. Pershing conveying said land for a consideration of $1,405.30 cash, dated August 5, 1921, duly recorded.

The plaintiff then offered in evidence the citation found among the papers in the foreclosure suit in Bexar County, and sheriff's return thereon, being the only citation and service as to Shipley found among the papers in the case. This citation was issued in conformity with article 1874, R. S. 1911, article 2039, R. S. of 1925, and was duly served by publication in a newspaper published in Bexar county as prescribed by said article.

The theory of appellant, as stated in his brief, is as follows:

"(1) The conveyance from Pershing to the American Realty & Loan Company, dated April 29, 1914, filed for record May 11, 1914, being without consideration, and the subsequent deed from the American Realty & Loan Company, as trustee for R. S. Pershing, to the Pershing Lumber Company, dated October 27, 1914, but not filed for record until October 30, 1920, were each void as to existing creditors, and consequently the levy on May 17, 1915, of an execution issued on a judgment against Pershing rendered December 14, 1911, and a sale thereunder on July 6, 1915, conferred title in the purchaser at such sale both as against Pershing, the American Realty & Loan Company, the grantee in such unrecorded deed, and all subsequent vendees.

"(2) The judgment of the...