Slaughter v. Qualls

• Decision Date: 13 May 1942
• Docket Number: No. 7872.,7872.
• Citation: Slaughter v. Qualls, 162 S.W.2d 671, 139 Tex. 340 (Tex. 1942)
• Parties: SLAUGHTER et al. v. QUALLS.
• Court: Texas Supreme Court

162 S.W.2d 671

SLAUGHTER et al. v. QUALLS.

No. 7872.

Supreme Court of Texas.

May 13, 1942.

Rehearing Denied June 24, 1942.

COPYRIGHT MATERIAL OMITTED

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

Suit in nature of trespass to try title by H. B. Qualls, against Sue Alice Slaughter and husband. To review a judgment of the Court of Civil Appeals, 149 S.W.2d 651, partly reversing the judgment of the district court rendering judgment, and partly affirming the judgment, Sue Alice Slaughter and husband bring error.

Judgment of Court of Civil Appeals affirmed.

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

Carl Ratliff, of Levelland, and G. E. Lockhart, W. R. Porter, and Nelson & Brown, all of Lubbock, for defendant in error.

ALEXANDER, Chief Justice.

This is a suit in the nature of trespass to try title brought by the vendee of the land against the holder of a purchase money note who had attempted to foreclose a deed of trust lien given to secure such note. The controlling questions are: (1) Whether the trustee's deed, regular on its face, is absolutely void and may be attacked in this kind of suit by parol testimony of irregularities in the foreclosure sale at a time when a direct suit to cancel the deed is barred by the four-year statute of limitation, Art. 5529, R.C.S.1925, and (2) if the trustee's deed is void, whether the holder of the notes thereafter lawfully rescinded the executory contract of sale and thereby cut off the vendee's rights in the land.

On January 6, 1928, Bob Slaughter conveyed to plaintiff, H. B. Qualls, the land in controversy, and received six notes as part of the consideration therefor. 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 $482.92, bearing 7% interest payable annually, and providing for acceleration of maturity on default in payment of the interest, 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, in addition, a deed of trust was given on the land to secure the payment of the sixth note. R. L. Slaughter, Jr., was named as trustee therein. 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. The superior legal title of the vendor was also duly transferred to the holder of the note. 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, said substitute trustee 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, three days after the sale, 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 $2,700 to take up the original indebtedness on the land which Mrs. Slaughter owed and Stowers assumed, and also the balance due on the notes given by Stowers to Mrs. Slaughter. On November 21, 1934, Stowers conveyed the land back to Mrs. 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. On the 1st of April, 1935, Mrs. Slaughter and her husband conveyed the land 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. The Slaughters also executed an oil and gas lease and conveyed certain other mineral interests, which are now outstanding.

On September 8, 1938, more than four years after the execution and recording of the trustee's deed from Richards, the substitute trustee, to Mrs. Slaughter, Qualls filed this suit against the Slaughters and the owners of the mineral interests and the holders of the liens given subsequent to the trustee's deed. In addition to the ordinary allegations in trespass to try title he pleaded specially the grounds upon which he sought to recover the land, particularly certain irregularities in connection with the trustee's sale. He prayed judgment for title and possession of the land and that the trustee's deed and all subsequent instruments be decreed void and removed as clouds on his title.

At the trial there was evidence tending to show, and the jury found, that A. J. Richards, the substitute trustee, did not himself personally conduct the sale, but that it was conducted at his request by one Douglas Witherspoon, who cried off the sale, received and accepted the bid, and declared the property sold to Mrs. Slaughter. The jury also found that at the time of the sale there was no default by Qualls in payment of the principal or interest on the sixth note, which was secured by the deed of trust. It is not contended that this finding is unsupported by the evidence. Based on this verdict, the trial court rendered judgment, awarding to plaintiff Qualls the title and possession of the land as against all the defendants. On appeal the Court of Civil Appeals reversed the judgment of the trial court and rendered judgment in favor of the mineral owners and lessees and the holders of the liens, holding that they were entitled to protection as bona fide purchasers, but affirmed the judgment as against the Slaughters on the ground that the trustee's deed was void and passed no title out of Qualls; hence, the four-year statute of limitation was no bar to Qualls' suit to recover the land. 149 S.W.2d 651.

Qualls has not appealed from the judgment of the Court of Civil Appeals holding that he could not recover as against those who had acquired liens on and mineral interests in the land in good faith, subsequent to the trustee's sale. Consequently, we are not here concerned with the rights of such parties.

Admittedly, there is nothing on the face of the trustee's deed that would render it void. The deed of trust contained the usual provisions authorizing the trustee, or a duly appointed substitute trustee, to recite in the trustee's deed the facts concerning the sale, and that such recitals should be prima facie evidence of the truth of the facts so recited. The substitute trustee's deed contained all recitals necessary to show a valid sale by him.

The rule has long been established in this State that where a deed is absolutely void, a suit at law in trespass to try title may be maintained to recover the land without setting the deed aside, and the statutes of limitation governing actions for the recovery of land apply. On the other hand, where a deed is merely voidable and the equity powers of the court must first be invoked to cancel the deed before a suit can be maintained at law to recover the land, then the four-year statute, Art. 5529, R.C.S. 1925, controls. McCampbell v. Durst, 15 Tex.Civ.App. 522, 40 S.W. 315; Carl v. Settegast, Tex.Com.App., 237 S.W. 238; Commercial Nat. Bank v. Wheelock, 52 Ohio St. 534, 40 N.E. 636, 49 Am.St.Rep. 738; 28 Tex.Jur. 107. Therefore, it is necessary for us to decide whether the trustee's deed was void or merely voidable in order to determine whether or not the suit was barred by limitation.

The question whether the trustee's deed is void or voidable depends on its effect upon the title at the time it was executed and delivered. If it was a mere nullity, passing no title and conferring no rights whatsoever, it was absolutely void, but if it passed title to Mrs. Slaughter, the purchaser, subject only to the right of Qualls to have it set aside upon proof that the sale was improperly made, then it was merely voidable. This was the distinction made by the Commission of Appeals in Smith v. Thornhill, 25 S.W.2d 597, 598:

"That which is void is without vitality or legal effect. That which is voidable operates to accomplish the thing sought to be accomplished, until the fatal vice in the transaction has been judicially ascertained and declared."

See, also, Cummings v. Powell, 8 Tex. 80, 85; Williams v. Sapieha, 94 Tex. 430, 61 S.W. 115; Chapman v. Guaranty State Bank, Tex.Com.App., 267 S.W. 690; Cain v. Fry, Tex.Civ.App., 86 S.W.2d 270; Jones v. Comer, W.Va., 13 S.E.2d 578; Hone v. Woolsey, 2 Edw.Ch., N.Y., 289; State v Richmond, 26 N.H. 232, 6 Fost. 232, 237; Kanamu v. Parke, 6 Haw. 91, 94; 44 Words and Phrases, Perm.Ed., p. 319 et seq.

The contention is made that since the trustee's deed was regular on its face and apparently conferred good title on the purchaser, and it was necessary for the plaintiff Qualls to go behind the deed and show the invalidity of the sale by parol testimony, the deed was merely voidable. We are not in accord with this view. It cannot be laid down as a general proposition that whenever a conveyance is regular on its face it operates to pass title between the parties at the time of its execution. For instance, a deed may be regular on its face and yet be void and ineffectual to pass any title to the grantee where the grantee has obtained possession of the deed by fraud without any delivery by the grantor, or where the grantor had no capacity to execute it. 14 Tex.Jur. 890. The same is true where a deed is intended as a mortgage on...