Triplett v. Shield, 4057

• Decision Date: 09 September 1966
• Docket Number: No. 4057,4057
• Parties: Jeanne TRIPLETT, Appellant, v. Flora J. SHIELD et al., Appellees. . Eastland
• Court: Texas Court of Appeals

Page 941

406 S.W.2d 941

Jeanne TRIPLETT, Appellant, v. Flora J. SHIELD et al., Appellees.

No. 4057.

Court of Civil Appeals of Texas.

Eastland.

Sept. 9, 1966.

Rehearing Denied Oct. 7, 1966.

Hardeman, Smith & Kever, San Angelo, J. M. Donald, Jacksboro and Justin A. Kever, San Angelo, for appellant.

Franklin & White, Leonard L. Franklin, Austin, Woodward & Johnson, Halbert Woodward, Rob O'Hair, Coleman, for appellees.

COLLINGS, Justice.

This suit was brought in 1939 by Hubert I. O. Shield, referred to as I. O. Shield, for the unpaid balance on five promissory notes executed by Elgean Shield and Flora Shield and for foreclosure of a lien on the land described in a deed of trust executed by the defendants on December 19, 1936. I. O. Shield died and by will his estate passed to his wife Hopilee Shield. Hopilee Shield died on July 25, 1949, leaving a will which was admitted to probate in California and a will which was probated in Montague County, Texas which, if valid, gave her property to her brother, Frank Triplett. Jeanne Triplett is the surviving wife of and claims as the sole beneficiary under the will of her deceased husband, Frank Triplett. The case was brought to trial in 1965. Plaintiff and defendants, Elgean Shield and wife, filed motions for summary judgment which were overruled. A jury was empaneled but after evidence had been introduced the parties agreed for the jury to be dismissed and the cause was submitted to the court for determination. The court entered judgment for the defendants and Mrs. Triplett has appealed.

In appellant's first point it is contended that the court erred in overruling plaintiff's motion for summary judgment asserting that the exhibits in evidence and admissions by defendants established plaintiff's right to recovery and that defendants presented no evidentiary data raising an issue as to any material fact. The point is overruled. A denial of a motion for summary judgment is interlocutory and not appealable. This is not a case in which the court granted a motion by one of the parties for summary judgment and refused the motion of the opposing party. The court here overruled the motions of both parties. There was then a trial on the merits before the court where there were genuine fact issues and judgment was rendered against appellant and for appellees. Under such circumstances it would not be proper to review the action of the trial court in overruling a motion for summary judgment. Tobin v. Garcia, (1958), 159 Tex. 58, 316 S.W.2d 396; Ackermann v. Vordenbaum, Tex., 403 S.W.2d 362.

After a judgment had been rendered at the trial upon the merits the court, in response to appellant's request, made findings of fact and conclusions of law. For a better understanding of the material and controlling issues involved we set out in full the findings of fact and conclusions of law made and filed by the trial court:

'1. On November 22, 1929, Leon Shield and wife, Emma Shield, I. O. Shield (same person as Hubert I. O. Shield) and wife, Vera Shield, Karl E. Wallace and wife, Camille Shield Wallace, Shield Brown and wife, Mary Brown, and Elgean Shield, a single man, executed and delivered their deed of trust upon 2571 acres of land in Coleman County, Texas, to F. O. Ketcham, trustee, to secure payment of six notes made by them to F. O. Ketcham Mortgage Company, the first five for $3200.00 each and the sixth for $16,000.00, payable--from January 1, 1931, to January 1, 1940.

2. Thereafter (January 8, 1930) the same grantors executed and delivered a correction deed of trust bearing the same date to the same trustee to secure payment of the same notes and covering the same land better described.

3. F. O. Ketcham Mortgage Company assigned said notes and lien to Kansas City Life Insurance Company on February 21, 1930.

4. On December 19, 1936, I. O. Shield conveyed to Flora Shield, wife of Elgean Shield, as her separate property, an undivided 6/25ths interest in 2031 acres of said land. This was a general warranty deed reciting a consideration of $6,000.00 paid and to be paid out of grantee's separate property, $1,000.00 thereof in cash and the remaining part to be evidenced by five notes executed by grantee, joined by her husband, Elgean Shield. Other than the vendor's lien securing payment of said five notes there were no exceptions or qualifications to the general warranty contained in said deed. No mention whatsoever was made of the liens and notes referred to in Findings Nos. 1 and 2 above. The conveyance of said 6/25ths interest was the only consideration for the $1,000.00 so paid and the five notes so given. The following payments and none other have been made on said five notes, towit: $100.00 on June 21, 1937; $200.00 on June 23, 1937; $51.00 on August 28, 1937; $40.00 on September 15, 1937; $75.00 on September 20, 1937; $100.00 on December 1, 1937; $50.00 on January 18, 1938. All such payments were credited on the first of said notes.

5. On the same day, December 19, 1936, Flora Shield and Elgean Shield executed and delivered to the said I. O. Shield the five promissory notes mentioned in Finding No. 4 above, the notes bearing six percent interest, with past due principal and interest bearing interest at the rate of ten percent per annum, and containing provisions for ten percent attorney's fees and accelerated maturity in case of default. At the same time also the said Flora and Elgean Shield made and delivered their deed of trust upon said 2031 acres of land to E. P. Woodruff, trustee, to secure payment of said five notes, the deed of trust containing a general warranty clause and purporting to cover the whole interest in said land.

6. Kansas City Life Insurance Company assigned to First Coleman National Bank of Coleman, Texas, the last three of the notes referred to in Finding No. 1 above by instrument dated February 24, 1938, reciting that the first three of said notes had been paid.

7. First Coleman National Bank appointed S. H. Gray substitute trustee in place of F. O. Ketcham on March 8, 1938.

8. On April 8, 1938, the said S. H. Gray, substitute trustee, sold an undivided 19/25ths interest in the land covered by the November 22, 1929, deeds of trust, to First Coleman National Bank for $10,000.00. This was done regularly in accordance with the power of sale contained in the correction deed of trust dated November 22, 1929, sale being at public auction, following proper notice. Unpaid on said 1929 notes and deed of trust at the time of foreclosure was the sum of $26,411.62, principal, interest and taxes. The 19/25ths interest in the land foreclosed upon included the 6/25ths interest so conveyed by I. O. Shield and wife to Flora Shield.

9. On October 13, 1938, First Coleman National Bank conveyed said 2571 acres to Elgean Shield for a consideration of $32,000.00 represented by 20 notes payable to Mrs. Lillian Winterbotham aggregating $30,000.00, and four notes of $500.00 each payable to Brown Bros., said notes being executed by Elgean Shield, Flora Shield, Karl Wallace and Camille S. Wallace, the vendor's lien being retained to secure payment of such notes.

10. On October 13, 1938, Elgean and Flora Shield conveyed to Camills S. Wallace as her separate property an undivided 19/50ths interest in said 2571 acres and Mrs. Wallace assumed as her primary obligation 19/50ths of the indebtedness mentioned in Finding No. 9 above.

11. On December 7, 1950, Camille S. Wallace and Karl B. Wallace conveyed to Elgean Shield all their right, title and interest in 2031 acres of said 2571 acres of land, being the same 2031 acres as that mentioned in Finding No. 4 above and that which is concerned in this Cause. In this deed the Wallaces retained 15/50ths of the royalties (non-participating) on oil, gas and other minerals.

12. I. O. Shield died testate and on July 12, 1947, his will was admitted to probate in Cause No. 3830, Montague County, Texas. His widow, Hopilee T. Shield, was made independent executrix and succeeded to the ownership of the December 19, 1936, notes, subject to the contract of Donald & Donald, attorneys, for one-half thereof.

13. Hopilee T. Shield died on July 25, 1949, leaving a will made on July 20, 1949, which was admitted to probate in Cause No. 297,419, Superior Court, Los Angeles County, California, on August 22, 1949, and in which will she gave fifty percent of her residuary estate to Louis A. Eshman, trustee, the principal or income of such trust estate to be paid to the Cedars of Lebanon, Los Angeles, California, for cancer research and hospitalization of indigent cancer patients. The remainder of her residuary estate she gave to her doctor, the said Louis A. Eshman, whom she appointed executor. The December 19, 1936, notes were a part of such residuary estate.

14. On October 24, 1949, in Cause No. 4006, the County Court of Montague County, Texas, entered an order admitting to probate a purported will of Hopilee T. Shield, dated June 8, 1948, which, if valid as her last will and testament, gave her property to her brother, Frank Triplett, and made him executor.

15. Following the death of the said Hopilee T. Shield the first pleading filed in this suit indicating such death and making any sort of substitution of parties on account of such death was in intervention filed by Frank Triplett individually on May 20, 1954.

16. Said Frank Triplett died on January 19, 1961, and his will was admitted to probate in McLennan County, Texas, in Cause No. 19,534, on September 7 1961. His widow, Jeanne Triplett, was the sole beneficiary and independent executrix of his estate.

17. On November 5, 1963, Louis A. Eshman, individually, made an assignment purporting to assign any and all rights which he had in the five December 19, 1936, notes to 'Frank Triplett, his heirs and assigns, forever.'

18. Said five notes were delivered by I. O. Shield to the Clerk of this Court and filed in the papers of this Cause along with the original petition herein on April 7, 1939.

19. In...