Snider v. Forrest Lumber Co.

• Decision Date: 06 November 1969
• Docket Number: No. 446,446
• Citation: 448 S.W.2d 130
• Parties: L. L. SNIDER et ux., Appellants, v. FORREST LUMBER COMPANY, Appellee. . Tyler
• Court: Texas Court of Appeals

Page 130

448 S.W.2d 130

L. L. SNIDER et ux., Appellants, v. FORREST LUMBER COMPANY, Appellee.

No. 446.

Court of Civil Appeals of Texas Tyler.

Nov. 6, 1969.

Worley & Wright, D. Michael Worley, Lubbock, for appellants.

Blanchard, Clifford, Gilkerson & Smith, John C. Sims, Lubbock, for appellee.

MOORE, Justice.

This is an appeal from a summary judgment. Appellee, Forrest Lumber Company, instituted suit against appellants, L. L. Snider and wife, Tressie Snider, in trespass to try title seeking judgment for title and possession of all of Lot Twenty (20) and the West one-half of Lot Twenty-One (21), Block One Hundred Thirty-Four (134) of the Overton Addition to the City of Lubbock. Appellants answered with a plea of not guilty and a cross-action, alleging that the property was their homestead and that a certain Deed of Trust executed by them, as well as a Trustee's Deed conveying the premises to appellee, Forrest Lumber Company, were invalid and concluded with a prayer requesting cancellation of said instruments.

Appellee moved for a summary judgment and in support thereof filed an abbreviated abstract of title setting forth a brief description of the various instruments in the chain of title from the sovereignty of the soil down to and including the Trustee's Deed conveying the property to appellee, Forrest Lumber Company. The list of instruments set forth in the abstract contained the name of the grantor and grantee, date, and volume and page at which such instruments were recorded and was sworn to by appellee's agents and attorneys as being an abstract of the title to the property in question. In an amended motion for summary judgment, appellee attached thereto certified copies of the instruments appellee relied upon to establish title, towit: (a) a Deed by which appellant, L. L. Snider, originally acquired title to the land, datd March 8, 1961; (b) a Mechanic's & Materialman's Lien executed by appellants, L. L. Snider and wife, to John H. Mabry in the amount of $8,500.00, together with a transfer of said lien to the Lubbock National Bank, dated July 10, 1963; (c) transfer of the lien from Lubbock National Bank to appellee, Forrest Lumber Company, dated July 26, 1963; (d) transfer of the lien from Forrest Lumber Company to First Federal Savings & Loan Association of Lubbock, dated April 7, 1964; (e) a Deed of Trust executed by appellants, L. L. Snider and wife, Tressie Snider, to H. B. Bryan, Trustee, to secure payment of the sum of $8,500.00 to First Federal Savings & Loan Association of Lubbock, dated April 7, 1964; (f) resignation of Trustee dated November 6, 1967; (g) appointment of Substitute Trustee dated November 6, 1967; (h) a Deed from the Substitute Trustee to appellee, Forrest Lumber Company, reciting that appellee had purchased the property at foreclosure sale for the sum of $7,365 .04, dated December 5, 1967; (i) an affidavit by the Substitute Trustee stating that notice of sale was posted in three public places in Lubbock County twenty-one days successively next before the date of the sale; that appellants had been personally notified of the date of the sale and that thereafter the property was sold at 10:00 A.M. on December 5, 1967, in accordance with the notice.

The Deed of Trust executed by appellants contained a clause as follows.

'It is further expressly agreed that, in the event of any sale by the Trustee herein, or his substitute, from the fact of such sale it shall be presumed that everything necessary to authorize the making of same and to render such sale valid existed and has been performed, and all recitals in any conveyance by said Trustee, or his substitute, shall be prima facie evidence of the truth of all such recitals, and so taken in all controversies pertaining to said sale.'

Appellants do not deny the execution of the Mechanic's & Materialman's Lien Contract and Deed of Trust, nor do they deny that the certified copies of the instruments offered by appellee show superior record title in appellee. They admit that Forrest Lumber Company furnished material in the amount of approximately $8,500.00. They further admit that as of the time of the sale under the Deed of Trust, they were five months in arrears in their payments to First Federal Savings & Loan Association.

In response to the motion, appellant, L. L. Snider, filed an affidavit stating that the property in question was his homestead; that the property was worth in excess of the amount paid by the Forrest Lumber Company at the foreclosure sale, and that he and his wife were unable to protect themselves by attending the sale because they had 'no notice that the sale was to be made.'

The trial court, following a hearing, sustained the motion for summary judgment and entered judgment against appellants, whereupon they perfected this appeal.

Since this is an appeal from an order sustaining a motion for summary judgment pursuant to Rule 166--A, Vernon's Texas Rules of Civil Procedure, the sole question is whether a genuine issue of material fact is presented by the pleadings, affidavits and other documents presented to the trial court. The burden of demonstrating that no genuine issue as to any material fact exists rests upon the party filing the motion question of whether a genuine issue of material fact is presented, we must view material fact is presenteD we must view the record in a light most favorable to the party opposing the motion and accept as true the evidence which tends to support his position. Rule 166--A, Vernon's Texas Rules of Civil Procedure; Gulbenkian v. Penn. 151 Tex . 412, 252 S.W.2d 929; Manney & Company v. Texas Reserve Life Insurance Company, 407 S.W.2d 345 (Tex.Civ.App., Dallas, 1966, n.w.h .); Great American Reserve Insurance Company v. San Antonio Plumbing Supply Company, Tex., 391 S.W.2d 41, 47; White v. Lakewood Bank And Trust Company, 438 S.W.2d 129, 131 (Tex.Civ.App., Dallas, 1969).

After examining the pleadings, affidavits and other documentary evidence filed by appellee, we are of the opinion that appellee has sustained its burden of proof in establishing title to the land in question and is entitled to a summary judgment as a matter of law, unless the affidavits and other documentary evidence filed by appellants are sufficient to raise an issue of material fact.

Appellants contend that disputed fact issues were raised and seek a reversal of the judgment by three points of error. The first point is: 'The Trial Court erred in granting a Summary Judgment in favor of Plaintiff, inasmuch as material questions of fact appear on the face of the transcript.' Appellee objects to our consideration of this point of error because it is too general to comply with the requirements of Rule 418, Texas Rules of Civil Procedure. We consider the criticism of the point to be sound. Crutchfield v. Associates Investment Company, 376 S.W.2d 957, 959 (Tex.Civ.App., Dallas, 1964, err. ref.); Cotten v. Republic National Bank of Dallas, 395 S.W.2d 930, 940 (Tex.Civ.App., Dallas, 1965, n.r.e., citing cases). However, in accordance with our usual practice, we shall look to the statements and arguments in appellants' brief to determine, if possible, the exact nature of their complaints.

Appellants first contend that a disputed issue of fact was raised upon the question of whether appellants had notice of the Trustee's sale. In this connection, appellants...