Taylor v. W. C. Belcher Loan & Mortgage Co.

• Decision Date: 02 July 1924
• Docket Number: (No. 6773.)
• Parties: TAYLOR et al. v. W. C. BELCHER LOAN & MORTGAGE CO.
• Court: Texas Court of Appeals

265 S.W. 403

TAYLOR et al. v. W. C. BELCHER LOAN & MORTGAGE CO.

(No. 6773.)

Court of Civil Appeals of Texas. Austin.

July 2, 1924.

Rehearing Denied October 8, 1924.

Appeal from District Court, Bastrop County; R. J. Alexander, Judge.

Trespass to try title by the W. C. Belcher Loan & Mortgage Company against Mahala Taylor and others. Judgment for plaintiff, and defendants appeal. Affirmed.

J. P. Fowler, Sr., of Bastrop, for appellants.

Wm. J. Berne, of Fort Worth, for appellee.

Statement.

BLAIR, J.

This is a suit in trespass to try title and for a writ of possession. It was filed February 14, 1921, by appellee. Appellants answered by a plea of not guilty, and specifically interposed a plea of the 3, 5, and 10 years statute of limitation, a plea for improvements in good faith, and a plea of outstanding title in certain named parties.

A jury was waived, and the cause submitted to the court, and after hearing the evidence judgment was rendered for appellee. This appeal is from such judgment.

Findings of Fact.

Findings of fact and conclusions of law were filed by the trial court. No separate statement of facts accompanies the record. The pertinent facts and a statement of the manner in which the cause of action arose are as follows: On and prior to April 4, 1911, appellee, W. C. Belcher Loan & Mortgage Company, hereinafter designated the Mortgage Company, was the owner of certain vendor's lien notes, secured by a deed of trust on the land in controversy, the legal title to which was then in Mahala Taylor, a widow, and her children, as heirs of their deceased father, hereinafter designated the Taylors. The Taylors repudiated the loan in 1911, and thereafter, on the date aforesaid, the Mortgage Company caused the land to be sold under the power given in the deed of trust, and became the purchaser of the land at the sale. The trustee executed the Mortgage Company a deed to the land, which was duly recorded in the deed records of Bastrop county, where the land was located. Thereafter, on June 6, 1911, the Taylors, while in possession of the land, instituted suit against the Mortgage Company to cancel and annul the deed of trust and the trustee's deed; and the petition also contained a count in the usual form of a suit in trespass to try title. The Mortgage Company, as defendant in that suit, answered by a general denial and a plea of not guilty. Judgment was rendered in that suit for the Taylors, canceling and annulling the deed of trust and canceling the trustee's deed, and, further, that they have title and possession of the land in controversy. The Mortgage Company appealed from such judgment, which was affirmed by this court in the case of Belcher L. & M. Co. v. Taylor, 173 S. W. 278. A writ of error was granted by the Supreme Court, and on November 19, 1919, that court reversed the judgment of the trial court and of this court, and rendered judgment for the Mortgage Company, under the general order that plaintiffs take nothing by their suit and that the defendant go hence without day and with its costs (212 S. W. 647). No writ of possession was awarded the Mortgage Company as successful defendant in that suit, since both the pleadings of the plaintiffs and itself admitted that it was in possession, although the Taylors were then and had been for many years prior thereto in possession of the land in controversy, and remained so during the pendency of the appeal by the Mortgage Company in that case. The mandate of the Supreme Court was duly received and judgment entered by the trial court in accordance with the opinion. Thereafter a writ of possession was issued by the Mortgage Company as defendant and successful party in that case; but the sheriff refused to serve it without an indemnity bond, because the Taylors, as losing plaintiffs in that case, notified him in writing that the judgment of the Supreme Court did not award or authorize the issuance of such writ. The Mortgage Company then filed this suit in trespass to try title, and for a writ of possession against the Taylors, being the same as parties plaintiffs in the former suit supra, and involving the same land; to which suit the Taylors answered as above stated.

Common source of title is not disputed; hence no necessity for stating the chain of title through which each of the parties to the suit claims, except such as will be stated in the opinion. On the issue of improvements, the trial court found as a matter of fact that they were not made in good faith by the Taylors. Those in whom outstanding title was asserted became purchasers of their interest, pending the appeal of this first suit, from some of the children of Mahala Taylor, who were parties to the judgment of the Supreme Court in such suit at the time of their conveyance. Other facts will be stated in this opinion.

The trial court concluded that, under such facts as a matter of law, the judgment rendered by the Supreme Court in the Belcher Mortgage Co. v. Taylor Case, supra, was between the parties to that suit—that is, Mahala Taylor and her children and those claiming title under them by purchase pendente lite (the pendente lite purchasers being the parties in whom outstanding title was asserted)—and the appellee, a final adjudication of the title to the land in controversy in that suit; that the judgment, under the pleadings, divested plaintiffs in that suit, appellants here, and their purchasers pendente lite of title, and vested it in appellee here, who was defendant in that suit; that by reason of such judgment appellants' chain of title was broken, hence their plea of the three and five years statute of limitation was of no avail; that the plea of the ten years statute of limitation was of no avail, because ten years' adverse possession had not run at the time of filing of this suit by appellee. These conclusions are correct.

Where plaintiffs, in a trespass to try title suit, fail to establish title and their right of possession to the land in controversy, and judgment is that they take nothing and that the defendant go hence without day with his costs upon his plea of not guilty, its legal effect is to divest said plaintiffs of whatever title they may have at the time, and has the full force and effect of specifically vesting title and the right of possession in the defendant, and, as between the parties, is a bar to any suit in the future by such plaintiffs against the defendant for the same land.

The Taylors, as plaintiffs in the original suit, sued for both title and possession. The Mortgage Company pleaded in that suit not guilty. The judgment in the lower court and in this court in that case was that plaintiffs, the Taylors, recover both title and possession. The Supreme Court's judgment was that plaintiffs, the Taylors, in such suit take nothing, which was tantamount to a judgment that they have neither title nor the right of possession, and that the Mortgage Company did have title and the right of possession at that time.

A decree or judgment is final as to all questions involved in the same cause of action and defenses thereto which the parties to the suit might have adjudicated therein. Beaumont Irrigating Co. v. Delaune, 107 Tex. 381, 180 S. W. 98; Rackley v. Fowlkes, 89 Tex. 613, 36 S. W. 77.

The former final judgment having divested the Taylors of title and the right of possession to the land in controversy at that time under the pleadings in that case, the only title that they...