Smith v. Elliott

• Decision Date: 24 March 1941
• Docket Number: No. 5261.,5261.
• Parties: SMITH v. ELLIOTT et al.
• Court: Texas Court of Appeals

Page 1067

149 S.W.2d 1067

SMITH v. ELLIOTT et al.

No. 5261.

Court of Civil Appeals of Texas. Amarillo.

March 24, 1941.

Rehearing Denied April 14, 1941.

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

Action in trespass to try title by Ben F. Smith against Della Elliott and others. From a judgment for the defendants, plaintiff appeals.

Affirmed.

Robt. A. Sowder, Geo. W. McCleskey, and Nelson & Brown, all of Lubbock, for appellant.

Allison & Gordon, of Levelland, for appellees W. C. Elliott and Della Elliott.

Weldon Johnson, of Levelland, and Hefner & Hefner, of Oklahoma City, Okl., for appellee R. A. Hefner.

R. B. Violette and Eugene T. Adair, both of Fort Worth, for appellee Cascade Petroleum Co.

J. A. Amis, Jr., of Emory, and Carl E. Ratliff, of Levelland, amici curiæ.

JACKSON, Chief Justice.

The record shows that the State of Texas granted four leagues of land, among which was League 42 situated in Hockley County, Texas, to Rains County for school purposes. The State issued a patent therefor to the grantee on May 26, 1885 which was filed for record in Hockley County on February 3, 1920.

On October 22, 1927 the Commissioners Court of Rains County subdivided the leagues into labors and had a plat thereof made which appears in this record as the official plat of the Rains County School Land in Hockley County.

On May 8, 1928 the County of Rains, acting through its commissioners court, sold and conveyed by its county judge to Charles C. Crenshaw several of the labors into which the leagues had been subdivided, among which was Labor No. 10 in League No. 42 in Hockley County. The labor was conveyed in two deeds—the east half in one and the west half in another. Each recited as a consideration for the land therein conveyed $1,861.65, evidenced by a note due on or before forty years after December 1, 1928 and each deed retained a vendor's lien to secure the payment of the purchase price of the land described therein. The notes each drew 5% interest per annum payable annually and the deeds provided that failure to pay any annual installment of interest within 120 days after same became due should at the option of the commissioners court of Rains County mature all of said indebtedness remaining unpaid.

Charles C. Crenshaw, the grantee, executed a deed of trust to John T. Rushing, Trustee, who was the county judge of said county, covering all of said Labor No. 10 to secure the payment of one note for the sum of $3,723.30, the combined amount of the two vendor's lien notes, and made the deed of trust note due on or before December 1, 1968. The deed of trust expressly provides that there is to be no personal liability on Charles C. Crenshaw by virtue of the execution and delivery of the note therein described but that Rains County is to look to the land only for the payment of the purchase price. It also contains an accelerating clause which conforms to the provision in the deeds and vendor's lien notes for declaring the indebtedness due on default in the payment of interest.

On June 25, 1928 Charles C. Crenshaw conveyed said Labor No. 10 to Oscar Killian for a recited consideration of $886.50 cash and the assumption by Mr. Killian of the payment of the principal note of $3,723.30 according to the terms and effect thereof. Mr. Killian and wife, Viola Killian, by deed acknowledged January 12, 1929, conveyed the land to Ben F. Smith for a recited consideration of $1 cash, the execution of two notes aggregating the sum of $3,368.70, and the further consideration that Mr. Smith "does hereby assume and agree to pay off and discharge according to the terms thereof" the vendor's lien notes aggregating $3,723.30 with the deed of trust lien securing their payment, to the record of which reference is made for the terms and conditions thereof.

John T. Rushing, the original trustee in the deed of trust, died in 1931 and Mr. Smith defaulted in the payment of the interest on the indebtedness he assumed and agreed to pay. In fact, he never paid any installment of interest and permitted the taxes to become delinquent, hence, the land was unprotected by Mr. Smith for the delinquent taxes against it. E. M. Mason, who was county judge, was by order of the commissioners court appointed substitute trustee on January 11, 1933 and on August 31st thereafter he was again designated trustee and directed to sell the land in controversy under the deed of trust. On October 3, 1933 E. M. Mason as substitute trustee sold the land and executed a trustee's deed to Rains County for a consideration of $350 cash.

On February 5, 1934 Rains County by warranty deed conveyed said Labor No. 10 to W. C. Elliott for the consideration of $3,102.75 evidenced by an installment note for the sum of $2,804.78, the last installment being due and payable February 5, 1966 and the balance of the consideration was stated to be the payment of certain delinquent taxes. A vendor's lien was retained against the labor of land and the improvements to secure the payment of said indebtedness. On October 9, 1934 W. C. Elliott conveyed the land to his wife, Della. Thereafter in 1935 Elliott and his wife executed and delivered an oil and gas lease to H. A. Hedberg which was by him assigned to the Cascade Petroleum Company and on February 26, 1936 they conveyed the minerals under the south 100 acres of Tract No. 10 to Lewis Johnson, who in turn conveyed said minerals to R. A. Hefner.

On February 25, 1939 the appellant, Ben F. Smith, instituted this suit in the District Court of Hockley County as an action in trespass to try title to recover title and possession of said Labor No. 10, naming as defendants Della Elliott, W. C. Elliott her husband, Cascade Petroleum Company and R. A. Hefner.

The defendants answered by general demurrer, general denial and a plea of not guilty.

In a supplemental petition appellant, Smith, by a plea of tender offered to do equity by the defendants named in the suit.

In a trial before the court without the intervention of a jury judgment was rendered that the plaintiff, Ben F. Smith, take nothing by his suit against any of the defendants and that they go hence with their cost, from which judgment this appeal is prosecuted.

The appellees contend that if the sale by E. M. Mason as substitute was void the record discloses that the county had cancelled and rescinded the sale of the land to Ben F. Smith and in the original opinion we reversed the judgment and remanded the cause for the reason that Rains County had not been made a party to this suit.

On further investigation we have decided this was error. Articles 7370 and 7372, Vernon's Annotated Civil Statutes; Stanolind Oil & Gas Co. et al. v. State et al., Tex.Sup., 133 S.W.2d 767.

The appellant contends that the sale under the deed of trust which constitutes a link in appellees' chain of title is void for the reason, first, that E. M. Mason, who acted as substitute trustee in the place of the original trustee, John T. Rushing, deceased, was not appointed in writing; second, the order which shows the written appointment of E. M. Mason as substitute trustee recites the prior appointment of J. H. Foster as substitute trustee and thereafter the appointment of T. R. Potts as substitute trustee, but the record fails to show that the holder of the indebtedness ever requested either of such prior substitute trustees to act or that either ever refused to execute the powers given in the deed of trust and, hence, the attempted appointment of E. M. Mason by the commissioners court as substitute trustee under the record was invalid and the sale by him as such did not divest title out of Ben F. Smith.

On January 11, 1933 the commissioners court, by order duly passed and recorded, found that John T. Rushing, trustee named in the deed of trust, had died; that on January 11, 1932 J. H. Foster, county judge, had been appointed substitute trustee with the same powers that had been originally delegated to J. T. Rushing, deceased; but that J. H. Foster had refused to act as substitute trustee and on November 23, 1932 T. R. Potts was duly appointed substitute trustee with all the powers theretofore delegated to J. H. Rushing or his substitute, J. H. Foster; that the said T. R. Potts refused to act as such substitute trustee and said: "It is therefore ordered, adjudged and decreed by the Court that E. M. Mason, County Judge of Rains County, Texas, be and is hereby appointed Substitute Trustee, with all the powers delegated to J. T. Rushing or his Substitutes, J. H. Foster and T. R. Potts."

Then follows a description of certain lands directed by the commissioners court to be sold, none of which is involved in this litigation.

On August 31, 1933 the commissioners court at a regular session entered an order reciting in effect that upon consideration of the question of the...