Slaughter v. Qualls

• Decision Date: 10 March 1941
• Docket Number: No. 5267.,5267.
• Citation: 149 S.W.2d 651
• Parties: SLAUGHTER et al. v. QUALLS.
• Court: Texas Court of Appeals

149 S.W.2d 651

SLAUGHTER et al. v. QUALLS.

No. 5267.

Court of Civil Appeals of Texas. Amarillo.

March 10, 1941.

Rehearing Denied April 7, 1941.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Hockley County; Daniel A. Blair, Judge.

Suit in the nature of trespass to try title by H. B. Qualls against Sue Alice Slaughter and others. From a judgment for plaintiff, defendants appeal.

Reversed, and judgment directed in accordance with opinion.

Robert Howard, Geo. S. Berry, and Bradley & Wilson, all of Lubbock, and Kilgore & Rogers, of Wichita Falls, for appellants.

G. E. Lockhart and W. R. Porter, both of Lubbock, and Carl Ratliff, of Levelland, for appellee.

STOKES, Justice.

This suit in the nature of trespass to try title was filed on September 8, 1938, by appellee, H. B. Qualls, against the appellants, Sue Alice Slaughter and her husband, R. L. Slaughter, Jr., Sid W. Richardson, the Richardson Oils, Inc., the Great Southern Life Insurance Company, and Bob Slaughter, to recover the west one-half of tract No. 52 of the Bob Slaughter Block in Hockley County. By amended petition A. S. Goss, Federal Land Bank Commissioner, was made a party defendant, and Bob Slaughter was omitted. On April 1, 1940, appellee filed his third amended original petition upon which the case was tried and in which, in addition to the ordinary allegations of trespass to try title, he alleged numerous other grounds upon which he contends he is entitled to recover the land from all of the defendants. Since there is no controversy concerning the pleadings we do not deem it necessary to detail the allegations.

The record reveals that on January 6, 1928, Bob Slaughter conveyed to appellee the tract of land in controversy and as part of the consideration therefor appellee executed six notes. The first five notes were payable out of the proceeds of one-third of the cotton to be raised on the land, and the sixth note, in the sum of $489.92, bearing 7% interest payable annually, was due ten years after date. A vendor's lien was retained in the deed to secure the payment of the entire series of notes and as additional security of the sixth note, appellee executed a deed of trust on the land in which R. L. Slaughter, Jr., was named as trustee. On the 6th of May, 1931, Bob Slaughter assigned the $489.92 note to R. L. Slaughter, Jr., and on the 21st of January, 1932, R. L. Slaughter, Jr., assigned it to his wife, Sue Alice Slaughter. On October 28, 1933, R. L. Slaughter, Jr., executed and acknowledged an instrument in which he resigned as trustee, stating in the resignation that he was unable to act in such capacity and that he thereby refused to do so. A few days later Sue Alice Slaughter, joined by her husband, R. L. Slaughter, Jr., by written instrument, appointed A. J. Richards as substitute trustee and, upon request of Sue Alice Slaughter, he advertised the land for sale at the courthouse door on the 5th of December, 1933. At this sale Sue Alice Slaughter became the purchaser and A. J. Richards, the substitute trustee, executed and delivered to her a trustee's deed, in regular form, in which he purported to convey the land to her.

On December 8, 1933, the Slaughters conveyed the land to J. L. Stowers and as part of the consideration Stowers executed ten notes in the sum of $195.96 each, due one to ten years, respectively, and on the 1st of August, 1934, Stowers procured a loan from A. S. Goss, Federal Land Bank Commissioner, in the sum of $2700. This loan was made to take up and extend $1,306.40 prior indebtedness on the land, $1,184.22 of the series of vendor's lien notes executed by Stowers to Sue Alice Slaughter, and $209.38 delinquent taxes due on the land.

On November 21, 1934, Stowers conveyed the land back to Sue Alice Slaughter and as part of the consideration therefor Mrs. Slaughter assumed the payment of the $2,700 note which Stowers had executed to the Land Bank Commissioner, and on the 1st of April, 1935, Mrs. Slaughter, joined by her husband, R. L. Slaughter, Jr., conveyed it to A. E. Coe, who likewise assumed the $2,700 note held by the Land Bank Commissioner, and on the 10th of April, 1937, Coe reconveyed it to Mrs. Slaughter.

On July 2, 1937, after the land had been reconveyed to her by A. E. Coe, Mrs. Slaughter, joined by her husband, R. L. Slaughter, Jr., executed an oil and gas lease on the land to appellant, S. W. Richardson, the lease to remain in force for a term of three years and as long thereafter as oil or gas could be produced from any wells drilled thereon, and on the 3rd of July, 1937, the Slaughters conveyed to Richardson one-fourth of the oil, gas and other minerals in the land. On August 20, 1938, Richardson conveyed to appellee, Richardson Oils, Inc., the oil and gas lease, reserving a one-fourth overriding royalty in any oil and gas that may be produced, and on the 22nd of August, 1938, Richardson executed a deed of trust to W. S. Horne, trustee, in which he conveyed to the trustee the overriding royalty interests reserved by him in the land here involved, together with a large number of other properties, to secure appellant, the Great Southern Life Insurance Company, in the payment of an indebtedness of $2,000,000.

After the above mentioned transactions had been completed and the deeds, oil and gas lease, deed of trust and assignments involved therein, were all executed and placed of record in Hockley County, appellee instituted this suit, in which he sought to recover from all of the appellants the land in controversy upon the ground, principally, that the foreclosure by A. J. Richards, substitute trustee under the original deed of trust, was ineffective, and the trustee's deed executed by him to appellant, Sue Alice Slaughter, was void for a number of reasons, among them being that A. J. Richards was not properly appointed as substitute trustee and that the sale was not, in fact, made by him but was made by Douglas Witherspoon who did not possess authority to make the sale.

The case was submitted to a jury upon special issues and upon the verdict returned by the jury in answer thereto the court, on the 2nd of April, 1940, entered judgment in favor of appellee against all of the appellants, cancelling and holding for naught the trustee's deed of A. J. Richards, substitute trustee, and all subsequent deeds, liens, oil leases, assignments and instruments by which the land or any interest therein was conveyed, assigned or mortgaged, except the deed of trust and lien held by A. S. Goss, Federal Land Bank Commissioner, to secure the note for $2,700. Since appellee, in his pleadings, did not seek to cancel the lien of the Land Bank Commissioner and acknowledged the validity thereof, it will not be necessary to discuss that phase of the case.

At the close of the testimony appellants filed and urged motions for judgment, and after the verdict was returned they presented their motions for judgment non obstante veredicto. These motions were overruled by the court and, after the judgment was entered, they presented their motions for a new trial, which were likewise overruled, and they duly excepted and have perfected an appeal to this court.

The record is voluminous and a large number of assignments of error and propositions of law are presented in the brief, but we do not deem it necessary to discuss them in detail. The real questions to be decided are, first, whether or not appellee was entitled to recover against Sid W. Richardson, the Richardson Oils, Inc., and the Great Southern Life Insurance Company and, secondly, whether or not he was entitled to recover against Sue Alice Slaughter and her husband, R. L. Slaughter, Jr. As we have said, all of the appellants presented to the court their motions for an instructed verdict and also motions for judgment in their favor non obstante veredicto. These motions were overruled by the court and as we view the record no controversy is shown in the testimony concerning the controlling questions in the case.

The Richardson group of appellants, that is, Sid W. Richardson, the Richardson Oils, Inc., and the Great Southern Life Insurance Company, contend that appellee was not entitled to a judgment against them because each of them holds and claims title as an innocent purchaser and that under the evidence in the case they are protected by the law which secures to them their respective interests in the land because they purchased the same for value and without notice of any of the defects or infirmities in their title which form the basis upon which appellee seeks to recover the land. The basis of their title is the purported foreclosure sale by A. J. Richards, substitute trustee, and his trustee's deed to Sue Alice Slaughter. The deed of trust contained the usual provision concerning the appointment of a substitute trustee in the event of the death of the original trustee or his removal from Lubbock County, or his refusal, failure or inability for any reason, within ten days after request by the holder of the note secured thereby, to make the sale or perform the trusts imposed upon him by his appointment. The record contains an instrument duly signed and acknowledged by R. L. Slaughter, Jr., in which he recites his appointment as trustee and states that he is unable to act as such. It closes with a notice to Sue Alice Slaughter, the owner of the note secured by the deed of trust, that he is unable to act as trustee and refuses to do so. The resignation of the trustee bears date October 28, 1933, and on the 9th of November, 1933, Sue Alice Slaughter, joined by her husband, in writing, duly appointed A. J. Richards as substitute trustee. On the 5th of December, 1933, A. J. Richards as substitute trustee executed and delivered to Sue Alice Slaughter a trustee's deed in due form in which he conveyed the land to her. In this substitute trustee's deed A. J. Richards stated that appellee had made default in the payment of the interest due on the note for the...