Staley v. Vaughn, 3815.

• Decision Date: 18 May 1932
• Docket Number: No. 3815.,3815.
• Citation: 50 S.W.2d 907
• Parties: STALEY et al. v. VAUGHN.
• Court: Texas Court of Appeals

50 S.W.2d 907

STALEY et al. v. VAUGHN.

No. 3815.

Court of Civil Appeals of Texas. Amarillo.

May 18, 1932.

Rehearing Denied June 8, 1932.

Appeal from District Court, Wilbarger County; W. N. Stokes, Judge.

Suit by Fleta Staley and husband against E. L. Vaughn. From an adverse judgment, plaintiffs appeal.

Affirmed.

Harry L. Carter, of San Antonio, John C. Kay, of Wichita Falls, and J. W. Akin, of Tyler, for appellants.

Killough & Dotson, of Vernon, for appellee.

JACKSON, J.

The appellants Fleta Staley and her husband, C. R. Staley, instituted this suit in the district court of Wilbarger county against E. L. Vaughn, J. Shirley Cook, R. L. Rheay, and Wm. Cameron & Co., Inc., seeking to have declared null and void as to Fleta Staley a judgment of the district court of Wilbarger county, obtained against them as defendants in cause No. 2997 by Wm. Cameron & Co., Inc., as plaintiff.

The record discloses that in cause No. 2997 the plaintiff, Wm. Cameron & Co., Inc., sued the defendants C. R. Staley and Fleta Staley in the district court of Wilbarger county in 1921 to recover a balance of $4,427.15 and to foreclose its alleged mechanic's lien on the East one-half of the S. W. one-fourth of block No. 14 of the Texas Townsite Company's addition to the town of Vernon. The plaintiff alleged that it had sold and delivered to the defendants under an oral contract certain building material to be used, and which was used, in the construction of a brick bungalow on said real estate; that the defendants failed to pay said balance, as contracted, and on December 14, 1920, the plaintiff filed and had recorded in the office of the county clerk of Wilbarger county, Tex., its itemized and verified account of the material it had furnished, and thereby fixed its materialman's lien on said land and improvements. The defendants answered on September 15, 1921, by a general denial, pleaded that the premises were the separate property of Fleta Staley, and were used and occupied and constituted the homestead of the defendants and their family; that the building material furnished by the plaintiff was not contracted for in writing by the defendants as husband and wife, nor with the consent of Fleta Staley as the law required, and therefore the alleged lien was void and unenforceable.

In a supplemental petition the plaintiff denied that the premises were the homestead of the defendants at the time the material was furnished, and charged that, if the land was the separate property of Fleta Staley, the material delivered was contracted for by both the defendants, and was used in the necessary improvement of her land, and she was justly indebted to plaintiff for the material. The plaintiff, at a regular term of the district court of Wilbarger county, on March 27, 1928, recovered judgment against the defendants for the sum of $6,425.45, in which it was decreed that the premises were the separate property of Fleta Staley; that the debt was created for material furnished for the construction of the improvements on her said property, and plaintiff had a valid lien to secure the payment of said indebtedness. The lien was foreclosed and the property ordered sold as under execution for the payment of the debt.

Wm. Cameron & Co., Inc., on March 29, 1928, for a consideration of $2,250, properly transferred and assigned the judgment in said cause to E. L. Vaughn. The judgment became dormant, and on July 17, 1930, E. L. Vaughn, as plaintiff, filed cause No. 5213 in the district court of Wilbarger county against C. R. Staley and Fleta Staley, as defendants, to revive said judgment and for the foreclosure of the lien therein described. The defendants answered in cause No. 5213, by a general denial, and alleged that the property constituted their homestead. E. L. Vaughn, at a regular term of the district court of Wilbarger county, on the 20th day of September, 1930, obtained judgment in said cause against the Staleys. It recites that the defendants withdrew their answer, and adjudges that the Staleys were indebted to Vaughn in the sum of $7,280.35, as evidenced by the judgment in cause No. 2997, and decrees that E. L. Vaughn recover said amount from the Staleys and have a foreclosure of his lien on the property, and directed a sale thereof as under execution for the satisfaction of the debt.

The appellants also attack the judgment in cause No. 5213 as void and unenforceable, and prayed that the defendants be perpetually enjoined from selling said property and the collection and enforcement of said judgment.

An order of sale was issued by the district clerk of Wilbarger county on the 9th day of July, 1931, on the judgment in cause No. 5213, commanding the sheriff of the county to seize and sell the property as under execution, and make a good and sufficient deed to the purchaser thereof. This order was properly executed by said officer, and on August 4, 1931, by a deed of the sheriff of said county, the real estate and improvements thereon were conveyed to E. L. Vaughn for a consideration of $2,000.

On February 2, 1924, there was filed and recorded in the county clerk's office of Wilbarger county, Tex., by the Internal Revenue Department of the United States, in compliance with the acts of Congress, a notice of tax lien to the effect that there had been assessed under the internal revenue laws taxes in the sum of $10,250 against Mrs. C. R. Staley, which had not been paid, and the amount of said taxes, together with interest, penalties, and costs that might accrue in addition thereto, constituted a lien in favor of the United States upon all property and rights to property belonging to said taxpayer.

Fleta Staley, joined pro forma by her husband, C. R. Staley, on April 4, 1928, executed to Raymond R. Donaghey, as trustee for E. L. Vaughn as beneficiary, a deed of trust on said real estate and improvements to secure the payment of $6,425.45, the amount evidenced by the judgment in cause No. 2997; also to secure the additional sum of $2,500, evidenced by a duly executed promissory note of even date therewith, bearing interest from date at the rate of 10 per cent. per annum. The deed of trust recites that the judgment is a valid and subsisting lien on said property; that the money evidenced by the note for $2,500 was advanced by E. L. Vaughn at the request of Mrs. Staley and her husband, and used to compromise, settle, and discharge the income tax assessment by the United States against Mrs. Staley and to avoid the distraint of the land and premises and the seizure and sale thereof by the government in satisfaction of said taxes, and subrogates E. L. Vaughn to all the rights of the government in and to said property.

Raymond R. Donaghey, as trustee, on June 2, 1931, after the defendants had defaulted, and after complying with the terms and provisions of the deed of trust, sold the property under the provisions thereof and the requirements of the statutes at public auction to E. L. Vaughn, the highest and best bidder, for the sum of $4,750, and executed a trustee's deed conveying the property to him.

No question is presented as to the sufficiency of the pleadings of either party in the instant case to authorize the issues that were submitted to the jury and the judgment rendered by the court thereon.

In response to the special issues submitted, the jury found, in effect, that the property involved was the homestead of the appellants at the time the income tax lien of the government was filed with the county clerk of Wilbarger county, and also at the time the lien of Wm. Cameron & Co., Inc., was filed with said clerk; that Mrs. Staley was not present at the trial of either cause No. 2997 or cause No. 5213, but that Mr. Shirley Cook advised her of the date on which cause No. 2997 was to be tried, and informed her of the judgment of the court therein immediately after it was rendered; that Mr. Cook, at the time he filed suit No. 5213, to revive the judgment in No. 2997, or some time prior thereto, informed Mrs. Staley and her husband that he no longer represented them; that Mrs. Staley received a citation in cause No. 5213; that Mr. Cook did not advise her that she need pay no attention thereto, as the judgment in No. 2997 was dormant; that she knew on September 20, 1930, that her attorneys had withdrawn her answer in cause No. 5213, and knew on said date and prior to March, 1931, that Mr. Cook was not representing her in No. 5213; that she authorized Mr. Cook to negotiate with E. L. Vaughn for the purchase of the judgment in No. 2997; that both Mr. Cook and Mrs. Staley represented to Mr. Vaughn at the time he purchased said judgment that it was valid and foreclosed a lien against the property; that Mr. Vaughn believed and relied on such representations; that Mrs. Staley authorized Mr. Cook to negotiate with E. L. Vaughn with the view of getting him to advance to and pay the United States government the sum of $2,500 in settlement of the income taxes due the government; that both Mrs. Staley and Mr. Cook represented to Mr. Vaughn that the taxes due the government were secured by a valid lien on the property; that Vaughn believed and relied on the representations; that Mrs. Staley agreed to the rendition of the judgment in cause No. 2997 in consideration of the agreement of Wm. Cameron & Co., Inc., to release said judgment upon the payment to it of $2,250 or to transfer the judgment to such person as the Staleys might designate, upon the payment of said amount.

On this verdict the court rendered judgment that the plaintiffs take nothing by their suit, and that defendant E. L. Vaughn have and recover from the plaintiffs the title and possession to the property involved in this controversy.

Wm. Cameron & Co., Inc., J. Shirley Cook, and R. L. Rheay were discharged by the judgment, and no complaint is made on account thereof.

The findings of the jury, which have sufficient support in the evidence, eliminate all issues pleaded by appellants...