Straus v. Shamblin

• Decision Date: 10 October 1938
• Docket Number: No. 4931.,4931.
• Citation: 120 S.W.2d 598
• Parties: STRAUS v. SHAMBLIN et al.
• Court: Texas Court of Appeals

120 S.W.2d 598

STRAUS v. SHAMBLIN et al.

No. 4931.

Court of Civil Appeals of Texas. Amarillo.

October 10, 1938.

Rehearing Denied October 31, 1938.

Second Motion for Rehearing Denied November 12, 1938.

Appeal from District Court, Potter County; W. E. Gee, Judge.

Trespass to try title by W. M. Shamblin and others against Leo R. Straus. Judgment for plaintiffs, and defendant appeals.

Affirmed.

Gibson & Sutton, of Amarillo, for appellant.

W. S. Birge, of Amarillo, for appellees.

FOLLEY, Justice.

This is a trespass to try title suit filed June 18, 1936 by the appellees, W. M. Shamblin and Margaret N. Shamblin, husband and wife, and W. S. Birge, against the appellant, Leo R. Straus, involving Tract No. 4 of the McKinstry, Gilvin and Williams Addition to the City of Amarillo, Potter County, Texas, and other property not the subject of this appeal. The appellees alleged that the appellee Birge owned an undivided one-third interest in the land, and the Shamblins owned the remaining two-thirds interest. They further alleged that the appellees and appellant claimed under a common source of title, to-wit, the Amarillo National Bank. In the trial the parties agreed that such bank was the common source of title. The appellant answered by a plea of not guilty. The cause was submitted to the court without a jury, and the court rendered judgment for the appellees, from which judgment the appellant appeals.

On May 1, 1926, the land in controversy was conveyed by deed by the Amarillo National Bank to W. M. Shamblin and wife, but such deed was lost or misplaced and never placed of record. On June 9, 1926, the Shamblins executed a deed of trust upon the property, together with other property, in favor of the Amarillo National Bank, extending a mechanic's lien note dated May 1, 1926. This deed of trust was duly recorded in the deed of trust records of Potter County. On November 19, 1926, the Amarillo National Bank executed a release of this deed of trust, which release was also recorded. Immediately after purchasing the property, the Shamblins erected improvements on the land, consisting mainly of a house and windmill, and moved upon the premises. In April, 1928, they designated the premises as their homestead, which designation was duly recorded in the deed records of Potter County. Some time in the year 1928 the house was destroyed by fire, leaving the property vacant. On August 18, 1930, the Shamblins deeded a one-third undivided interest in the land to W. S. Birge and E. C. Nelson, Jr., said deed being thereupon placed of record. On March 20, 1931, E. C. Nelson, Jr., deeded his interest in the land to W. S. Birge. Although the appellees pleaded that the land still constituted their homestead, no proof was offered in support of such plea. On the other hand, the testimony showed, that at the time of the trial, the Shamblins were non-residents of the state of Texas.

On November 7, 1929, in the county court of Potter County, Texas, in Cause No. 4351, styled E. E. Finklea v. W. M. Shamblin et al., E. E. Finklea recovered judgment in the sum of $477.25 against Mrs W. M. Shamblin upon a note executed by her alone. The judgment recites that citations were issued against each of the Shamblins; that only Mrs. Shamblin was personally served; that the return on the W. M. Shamblin citation indicated that he was a non-resident; and that thereafter service was had upon him by publication. The county court thereupon rendered judgment that E. E. Finklea take nothing against the defendant W. M. Shamblin, but rendered judgment against Mrs. Shamblin in the amount stated. The judgment further decreed that the plaintiff, E. E. Finklea, have his execution. Shortly after the rendition of this judgment, no appeal having been taken therefrom, execution was issued on the judgment and returned "nulla bona."

On March 2, 1934, an alias execution was issued in Cause No. 4351, and the property herein involved was levied upon as the property of Mrs. W. M. Shamblin. It was advertised for sale by the constable receiving the execution and by him sold to E. E. Finklea on April 3, 1934, the deed for which was executed on April 4, 1934. On January 31, 1935, E. E. Finklea, who was the president of E. E. Finklea, Inc., executed a quit claim deed conveying his interest in the property to E. E. Finklea, Inc. Just prior thereto, on January 18, 1935, for a cash consideration of $100, E. E. Finklea, Inc., secured an instrument of conveyance of the property from the Amarillo National Bank. On June 10, 1935, E. E. Finklea, Inc., conveyed the property by general warranty deed to the appellant, Leo R. Straus, for a stated consideration of $400.

The appellant Straus is claiming title to this property, both by reason of the instrument of January 18, 1935 from the Amarillo National Bank to his grantor, E. E. Finklea, Inc., and by the execution sale to his grantor in Cause No. 4351 in the county court of Potter County.

The claim based on the instrument from the bank hinges largely on the determination of whether such instrument was a deed conveying the land or merely a quit claim conveying whatever interest the bank had at the time, in other words, a mere chance at title. We think the authorities are in accord on the proposition that the holder of a title in which there appears a quitclaim deed may not assert the claim of an innocent purchaser as against an outstanding title or secret trust or equity existing when the quitclaim deed was executed. Houston Oil Co. of Texas et al. v. Niles et al., Tex.Com.App., 255 S.W. 604. In the case of Threadgill v. Bickerstaff et al., 87 Tex. 520, 29 S.W. 757, on the question of the effect of a quitclaim deed on a prior unrecorded deed, Justice Brown, speaking for the Supreme Court of Texas, said [page 758]: "The instrument must be held to be a quitclaim deed, and that the defendant, claiming title through it, occupies no better position than his grantor. He is charged, by the character of the deed under which he holds, with notice of the unrecorded instrument under which plaintiffs claim title."

This being the law, if the instrument in question was a mere quitclaim, the appellant is in no position to assert any rights as a bona fide purchaser, but, on the other hand, was charged with the knowledge of the prior unrecorded deed of the Shamblins.

In order to determine the status of the instrument in question, we here quote such portions thereof as are pertinent to this issue:

"That the Amarillo National Bank of Amarillo, Texas, a national banking corporation, * * * * * does by these presents, bargain, sell, release and forever quitclaim unto the said E. E. Finklea, Inc., heirs and assigns, all of its right, title and interest in and to that certain tract or parcel of land, lying and being situated in Potter County, Texas, and described as follows, to-wit: (Here follows description of land.)

"To have and to hold the said premises together with all and singular, the rights, privileges and appurtenances thereto in any manner belonging unto the said E. E. Finklea, Inc., his heirs and assigns forever, so that neither the grantor herein, nor any person, or persons, claiming under it, shall, at any time hereafter, have, claim or demand any right or title to the aforesaid premises or appurtenances, or any part thereof."

We think the rule of construction of an instrument to determine whether it is a deed or merely a quitclaim is well stated in 14 Tex.Jur. 763, 764, in the following language: "The character of an instrument as constituting a deed or merely a quitclaim is to be determined according to whether it assumes to convey the property described, and upon its face has that effect, or merely professes to assign the grantor's title. If, according to the face of the instrument, its operation is to convey the property, it is a deed. On the other hand, if it purports to transfer no more than the title of the grantor, it is only a quitclaim."

Viewing the instrument in question in the light of the authorities on the subject, we are of the opinion that it was no more than a quitclaim deed. Since the bank had theretofore divested itself of all its interest in the land by its deed to the Shamblins, nothing passed from the bank to E. E. Finklea, Inc., in its quitclaim deed, and the appellant got no better title than his grantor had. We, therefore, think the trial court was correct in denying the appellant any recovery under this quitclaim deed. Cook et al. v. Smith, 107 Tex. 119, 174 S.W. 1094, 3 A.L.R. 940; Richardson et al. v. Levi et al., 67 Tex. 359, 3 S.W. 444; Winningham v. Dyo et al., Tex.Com.App., 48 S.W.2d 600; Houston Oil Co. of Texas et al. v. Niles et al., supra; Threadgill v. Bickerstaff et al., supra.

The claim of the appellant based upon the execution sale in Cause No. 4351 presents a more difficult situation. We have in question a judgment rendered against a married woman without the actual joinder of her husband as a party defendant. The judgment does not purport to reveal the nature of the demand upon Mrs. Shamblin, except that the debt was evidenced by a note which she executed during coverture without the joinder of her husband. Neither the judgment in question nor the record before us warrants any conclusion as to whether the debt involved was one for necessaries or was one incurred by the wife of some other nature. It could have been for either. Regardless of the status of the debt, it has been reduced to a judgment from which there was no appeal or error, and, therefore, it stands unattacked but for this collateral proceeding in trespass to try title.

Every reasonable intendment and presumption, not inconsistent with the record, must be indulged in favor of the validity of a judgment of a trial court. Smith et al. v. Pegram, Tex.Civ.App., 80 S.W.2d 354, writ refused. Although Mrs. Shamblin may have had some valid defense in Cause No. 4351, she did not avail herself of such defense. Upon the effect of such a...