Tanton v. State Nat. Bank of El Paso

• Decision Date: 12 November 1931
• Docket Number: No. 2587.,2587.
• Citation: 43 S.W.2d 957
• Parties: TANTON et ux. v. STATE NAT. BANK OF EL PASO et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

43 S.W.2d 957

TANTON et ux. v. STATE NAT. BANK OF EL PASO et al.^*

No. 2587.

Court of Civil Appeals of Texas. El Paso.

November 12, 1931.

Rehearing Denied December 3, 1931.

Appeal from District Court, El Paso County; P. R. Price, Judge.

Suit by Nathan W. Tanton and wife against the State National Bank of El Paso, Texas, and others. From an adverse judgment, plaintiffs appeal.

Affirmed.

Gowan Jones and C. M. Wilchar, both of El Paso, for appellants.

O. R. Armstrong, John T. Hill, J. F. McKenzie, and H. R. Gamble, all of El Paso, for appellees.

PELPHREY, C. J., and HIGGINS and WALTHALL, JJ.

This is a suit by Tanton and wife to recover a tract of land containing about sixty-eight acres in El Paso county.

The suit was filed February 17, 1930, against the devisees of M. W. Stanton, deceased, and his independent executor, the State National Bank of El Paso, Tex. The petition was in three counts. It was alleged that plaintiff resides in El Paso county, Tex., and has been a resident and bona fide citizen and inhabitant thereof for more than twenty years prior to the filing of the suit. The first count was in the usual form of the action in trespass to try title. The second count was in the alternative and adopted all allegations in the first count not inconsistent with the second count, and pleaded specially plaintiff's record title and that the property was the homestead of plaintiff from 1911 until at least on or about August 29, 1921, at which last date plaintiff by warranty deed conveyed same to R. W. Humphrey; that plaintiff at no time has owned or acquired any other homestead; that, after the warranty deed to Humphrey, said Humphrey by and through tenants entered into peaceable and adverse possession under title and color of title and remained in peaceable and adverse possession until ejected in 1926, and pleaded the three-year statute of limitation; that Humphrey died in 1926, and in February, 1928, his heirs by warranty deed conveyed the premises to plaintiff; plaintiff denied that defendants had or ever had any right, legal or equitable, in the property, and pleaded the four-year statute of limitations against any right of defendants. The third count adopted all allegations in the first and second counts not inconsistent therewith, and in the alternative pleaded that if the court should decide that any right, legal or equitable, remained in plaintiff after plaintiff conveyed the property to Humphrey, then in that event he alleged the premises to be his homestead, not only up until the time of the deed from plaintiff to Humphrey, but until the present time.

Tanton acquired the land in 1910. In January, 1921, Tanton's wife divorced him. By warranty deed dated August 20, 1921, filed for record August 29, 1921, Tanton conveyed the land to R. W. Humphrey. In this deed Tanton is described as a single man of Logan county, Okl., where the deed was executed and acknowledged.

On August 22, 1921, M. W. Stanton filed suit in the Thirty-Fourth district court of El Paso county, against Tanton in the petition averring that Tanton was a nonresident of Texas, residing in Logan county, Okl. In the first count of the petition Stanton claimed an indebtedness of several thousand dollars due him by Tanton, and also asserted an equitable lien securing the same upon the land now in controversy. He prayed judgment for the debt and that the equitable lien of plaintiff upon the land and premises be found, established, and foreclosed to secure payment of said indebtedness, and for general relief.

By second count, in the alternative, he declared upon a quantum meruit for like amount, and prayed judgment for said debt.

An attachment was issued and levied upon the land August 31, 1921.

At the September term, 1921, judgment was rendered in Stanton's favor. The judgment recited and found due service of process on August 24, 1921, by notice to nonresident, and that defendant had failed to appear and had defaulted. The judgment shows that it was rendered after hearing the plaintiff's petition read and the evidence adduced. The judgment found and established "in favor of plaintiff, and against the defendant, an indebtedness for the said sum of $5,796.15, together with interest thereon from this date, at the rate of six per cent per annum, and it is by the Court, therefore, further ordered, adjudged and decreed, under the allegations of the petition of plaintiff and evidence, oral and documentary, that the lien of plaintiff securing the payment of said sum, interest and cost of suit, as said lien existed on the 25th day of September A. D. 1917, and upon any date or time since said date, be and the same is hereby found and foreclosed upon that certain real estate," then follows description of land here involved.

Then follows also foreclosure of the attachment upon the land; also, direction that order of sale be issued. By sheriff's deed dated November 2, 1921, all of the "right, title and interest which the said Nathan W. Tanton had on the 25th day of September, A. D. 1917, or at any time afterwards, of, in and to" the land was conveyed to Stanton for the sum of $3,952.52.

R. W. Humphrey died February 27, 1926, and by deed dated February 15, 1928, his heirs reconveyed the land to Tanton.

Upon an instructed verdict, judgment was rendered that the plaintiffs take nothing by their suit, and that the defendants go hence without day.

With reference to the deed which he executed to Humphrey on August 20, 1921, Tanton testified:

"When Stanton sued me I went to see a lawyer up there in Oklahoma and did exactly as he told me to. I went to him in Muskogee. He told me to convey the land to Mr. Humphrey but hold my homestead rights in the property. That is what I did, and that is what I testified to on the previous trial of this case, in substance. I had an agreement with Mr. Humphrey that he would convey the property back to me any time I wanted it. His heirs conveyed the land back to me. I did this on the advice of my lawyer. * * *

"That was in Guthrie, Logan County. I had an agreement with Mr. Humphrey when the deed was made that it was not to be a bona fide transaction, I was just placing the title in him to hold for me, and the agreement was that some time in the future he would return it — I never gave up possession of the land. I delivered the deed to him, he sent it here to put on record. I did not send it. Mr. Humphrey did not pay me anything for the deed. The bank in Oklahoma didn't send the deed nor was it escrowed. It wasn't turned back to me and I haven't testified so in previous litigation. Mr. Humphrey didn't pay me anything for the deed."

It is well settled in this state that a deed absolute upon its face may be shown by parol to be intended as a trust. The testimony quoted shows that Humphrey held the land in trust for Tanton to be recoveyed upon request. Tanton's testimony shows that the superior equitable title remained in him. This superior title passed, by the foreclosure proceedings, to Stanton if such proceedings are valid.

Much is said by appellants in their brief about the necessity of appellees showing that the deed was in fraud of creditors, and this cannot be done because the land was Tanton's homestead, was exempt as such, and the voluntary conveyance therefore not in fraud of creditors.

Tanton contends that the land has always been his homestead and, if this be true, then the conveyance to Humphrey was not in fraud of creditors, and the trust in the land in his favor a valid one. That trust retained in him the superior equitable title to the land which passed to Stanton, and the legal title subsequently acquired by Tanton from the Humphrey heirs is now and always has been subordinate to the equitable title.

If the land was not Tanton's homestead, then the deed was fraudulent and void as to his creditor, Stanton. Tanton's own testimony so shows. Upon this phase of the case we hold that the superior equitable title passed to Stanton by the foreclosure proceedings, if these proceedings were valid, and Tanton cannot defeat this equitable title by simply showing that he has reacquired the bare legal title from the heirs of his trustee.

Passing now to the foreclosure proceedings, we will first consider the validity of the foreclosure of the so-called equitable lien.

The petition is very lengthy. It was an action for debt amounting to over $5,000, and allegations intended to show an "equitable" lien upon the land, which it was prayed be found, established, and foreclosed to secure the payment of the debt.

The facts alleged in the petition were insufficient to show a lien upon the land, and this feature of the petition was subject to general demurrer. But this does not subject the judgment to collateral impeachment unless the deficiency is one which affects the jurisdiction of the court and deprives it of jurisdiction. 1 Freeman on Judgments (5th Ed.) § 365; 1 Black on Judgments (1st Ed.) § 269, 34 C. J. p. 554, § 852 and p. 560, § 860; Holmes v. Buckner, 67 Tex. 107, 2 S. W. 452; Moore v. Perry, 13 Tex. Civ. App. 204, 35 S. W. 838; Pearson v. Lloyd (Tex. Civ. App.) 214 S. W. 759; Hart v. Hunter, 52 Tex. Civ. App. 75, 114 S. W. 882.

This matter is discussed at some length by Judge Freeman at § 365, from which these excerpts are taken:

"For jurisdiction does not depend upon the sufficiency or fullness of the statement of the cause of action pleaded, nor is it of any importance collaterally whether the pleading does or does not state a cause of action, provided it sets forth a case within the court's powers. If a cause is pleaded belonging to a general class over which the court's authority extends, then jurisdiction attaches and the court has the power to determine whether the pleading is good or bad, and to decide upon its sufficiency as a statement of a cause of action. * * *

"It would be difficult to imagine a case in which a court having jurisdiction in other respects could not render a judgment...