Soper v. Medford
| Decision Date | 01 May 1953 |
| Docket Number | No. 3012,3012 |
| Citation | 258 S.W.2d 118 |
| Parties | SOPER et al. v. MEDFORD et al. |
| Court | Texas Court of Appeals |
Blakeley & Harrison, Dallas, for appellants.
Wm. H. Hall, Stinson, Read & Boren, John T. Barfield, Bonney, Paxton & Wade and Leonard Winborn, Dallas, for appellees.
Homer Medford, Myrtle Medford Shaw, Bonnie Medford Nichols, Bertha Currine, and others, sued Mary L. Soper, a widow, in trespass to try title to Lots 1, 14, 6 and 7 in Blocks D, C, and A over 3413, Dal Cliff Addition to Dallas. In a second count, plaintiffs alleged that the only interest held by Mrs. Soper was by virtue of her purchase of said lots at a constable's sale on February 7, 1949, under an order of sale issued by a District Court in cause Number 14,690-E; that the sale was void and did not affect plaintiffs' ownership because the defendant in cause, R. E. Medford, joined by his wife, had long prior to the rendition of said judgment executed and delivered to all the plaintiffs a general warranty deed conveying all of their right, title and interest in said lots and R. E. Medford and wife then had no interest in said lots and Mrs. Soper, therefore, acquired no right, title or interest by purchasing them at the constable's sale.
J. Alex Blakeley, who, apparently, jointly with Mrs. Soper in purchasing the lots at the constable's sale, intervened. He and Mrs. Soper will hereafter be referred to as defendants. They filed a plea of not guilty and a cross-action in trespass to try title to said lots.
A jury found (1) that a 'deed' to Lot 1 from R. E. Medford and wife to Bonnie Medford Nichols was executed for the purpose of placing it beyond the reach of Mrs. Soper, a judgment creditor; that (2 and 3) the 'deeds' from R. E. Medford and wife to Lots 6 and 7 (to all the plaintiffs) and to Lot 14 (to Myrtle Shaw) were not executed for the purpose of placing them beyond the reach of creditors; that (4) in July, 1940, when R. E. Medford executed an instrument, which plaintiffs say is a deed to Lot 1, to Bonnie Nichols, that R. E. Medford and wife were not using Lot 1 as their homestead; that (6) in October, 1933, when R. E. Medford and wife executed an instrument claimed by plaintiffs to constitute a deed conveying Lots 6 and 7 to all the plaintiffs, that R. E. Medford and wife were then occupying Lots 6 and 7 as their homestead; that (5) on February 3, 1933, when R. E. Medford executed an instrument claimed by Mrs. Shaw to constitute a deed conveying Lot 14 to her, that R. E. Medford and wife were not then using and occupying Lot 14 as their homestead.
In accord with the verdict, the court held (1) that all of the plaintiffs were entitled to a decree that on and before October 30, 1933, Lots 6 and 7 were the homestead of R. E. Medford and wife; that on said date they conveyed said lots to all the plaintiffs and thereafter had no right, title or interest therein and that said conveyance was not made to defraud creditors; (2) that in February, 1933, R. E. Medford owned Lot 14 and on said date conveyed it to Myrtle Medford Shaw and thereafter had no right, title or interest therein and, although Lot 14 was not the homestead of Medford and wife, said conveyance to Myrtle Medford Shaw was not made to defraud creditors; (3) that on and prior to July 10, 1940, Lot 1 was not the Medfords' homestead; that on said date R. E. Medford conveyed Lot 1 to Bonnie Medford Nichols; that Mrs. Soper was then a creditor of R. E. Medford and said conveyance was made for the purpose of placing it beyond the reach of Mrs. Soper, as a creditory, and, therefore, said conveyance was void as to Mrs. Soper and the title remained in R. E. Medford and Lot 1 was subject to the levy of the writ of execution on December 30, 1948, by virtue of a judgment for defendants against R. E Medford; (4) that the constable's deed to defendants, dated February 1, 1949, cast a cloud on the title of all the plaintiffs to Lots 6 and 7 and on the title of Myrtle Medford Shaw to Lot 14 which should be removed.
Judgment was rendered awarding all of the plaintiffs title to Lots 6 and 7; that Myrtle Medford Shaw recover, in addition to her interest in Lots 6 and 7, the title to Lot 14, but awarding the defendants Lot 1.
Bonnie Medford Nichols excepted to that portion of the judgment awarding title to Lot 1 to defendants and Lot 14 to Mrs. Shaw, but did not appeal. Mrs. Soper and Mr. Blakeley excepted to the judgment, 'save and except as to Lot No. 1.' Only defendants, Soper and Blakeley, have appealed. In their appeal bond and briefs they refer only to the judgment awarding Lots 6 and 7 to plaintiffs.
Bonnie Nichols, by cross-assignments in an appellees' brief, attacks those portions of the judgment awarding Lot 1 to defendants and Lot 14 to her coappellee, Mrs. Shaw. We cannot consider such cross-assignments as to Lot 1, because the judgment as to Lot 1 was severable and there was no appeal from that part of the judgment. Milliken v. Coker, 132 Tex. 23, 115 S.W.2d 620, 621; Leap v. Braziel, Tex.Com.App., (Sup.Ct.) 121 S.W.2d 334, 336; Barnsdall Oil Co. v. Hubbard, 130 Tex. 476, 109 S.W.2d 960, 963, 964; Detroit Fidelity & Surety Co. v. State, 124 Tex. 145, 76 S.W.2d 492, 493; Hunt v. Garett, Tex.Civ.App., 275 S.W. 96, 107, affirmed, Tex.Com.App., 283 S.W. 489, 491; Temple Trust Co. v. Haney, Tex.Civ.App., 103 S.W.2d 1035, 1041, affirmed 133 Tex. 414, 107 S.W.2d 368; Gilmer's Estate v. Veatch, 102 Tex. 384, 117 S.W. 430. Neither can we consider the cross-assignment as to Lot 14, as between Mrs. Nichols and Mrs. Shaw, because Lot 14 was awarded to Mrs. Shaw and Mrs. Nichols did not appeal from the judgment and cannot here cross-assign error against her coappellee. The controversy over Lot 14 is solely between Mrs. Shaw and Mrs. Nichols. In their appeal bond the defendants refer only to that part of the judgment awarding title to Lots 6 and 7 to all the plaintiffs and in their (appellants') brief they question the judgment only as to Lots 6 and 7. It is evident that defendants did not intend to appeal from any other part of the judgment. In 3B Tex.Jur., pages 157, 158, the rule is stated as follows:
See also 3 Tex.Jur. 873, 875; Anderson v. Silliman, 92 Tex. 560, 50 S.W. 576, 579; Cadwell v. Dabney, Tex.Civ.App., 208 S.W.2d 127, 132 (RNRE); Sherman v. Stein, Tex.Civ.App., 173 S.W.2d 732, 733 (RWM).
The 'deed' to Lots 6 and 7 from R. E. Medford and wife to all of the Medford children was as follows:
'R. E. Medford et ux.
To: Warranty Deed
R. E. Medford
The State of Texas
County of Dallas
'That We, R. E. Medford and wife, Ida Medford of the county of Dallas state of Texas, for and in consideration of the sum of One Dollar, love and affection and other considerations, dollars to the children in hand paid by the children and heirs of R. E. Medford and Ida Medford father and mother respectively of Bertha Currine, Roxie Medford Rodgers and Walter Medford our second son in birth and Kattie Medford Wray and Homer Medford and Dora Medford and Mirtle Medford Shaw and Bonnie Medford Nichols and their heirs of their boddise respectfully, we deed in love and especial effiction to them respectfully and their heirs of their boddise until their earthly existences and the existinsce of the heirs of their bodies, never to be sold or traded off, have granted sold and conveyed and by these presents do grant sell and convey unto the said heirs of the said R. E. Medford and Ida Medford of the county of Dallas, State of Texas, all that certain tract or parcel of land in the city of Dallas Dallas County, Texas, all of the certain lots, all the buildings improvements on lot 6 and 7 in said block, No. 6 and 7 being our home and possession in block 34 and all we have and executed any lien of judgments or executions Block No. 7 in said Block 7 in Block 6 and 7 in said 2 lots in block in the blocks of DalCliff Addition to the city of Dallas, Texas.
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