Washington v. Giles

• Decision Date: 17 January 1924
• Docket Number: (No. 8429.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 258 S.W. 900
• Parties: WASHINGTON et al. v. GILES.
• Court: Texas Court of Appeals

258 S.W. 900

WASHINGTON et al. v. GILES.

(No. 8429.)^*

Court of Civil Appeals of Texas. Galveston.

January 17, 1924.

Rehearing Denied February 7, 1924.

Error from District Court, Harris County; J. D. Harvey, Judge.

Suit of trespass to try title by William Giles against Ben P. Washington and another. Judgment for plaintiff. Defendants bring error. Affirmed.

R. W. Greene and Pritchett Harvey, both of Houston, for plaintiffs in error.

Campbell & Nicholson and Amerman & Sears, all of Houston, for defendant in error.

LANE, J.

This is a suit of trespass to try title and for possession of lots 5 and 7 and the adjoining halves of lots 8 and 12 in block 471 in the city of Houston, brought by William Giles against Ben P. Washington and his wife, Ella L. Washington.

Defendants answered by a plea of not guilty and by a plea setting up the statute of limitation of 10 years as a bar to the suit, and a plea in which they alleged, substantially, that the lots were their homestead; that appellee, claiming he owned notes made by them for sums aggregating $2,000, secured by a mortgage lien on the lots, repeatedly threatened to have them put off same, and in April, 1917, commenced a suit against them in a district court of Harris county, alleging that he was the owner of the lots; that the notes were "without consideration, being for a pretended indebtedness against their homestead"; that they (appellants), "through their ignorance of law," nevertheless "thought they were obliged to pay the notes" or lose their homestead; that they therefore agreed with appellee that if he would destroy the notes, dismiss said suit, and "give them a warranty deed to the lots," they would pay him $75 in cash and make and deliver to him their promissory note for $3,229 payable in monthly installments of $35 each; that they paid appellee $75, and afterwards made him the note for $3,229, as they agreed they would, and that appellee made and delivered a deed conveying the lots to them; that on or about June 1, 1917 (when same became due), they offered to pay appellee the first installment of $35; that he refused same, claiming they owed him $200; that a few days later they offered to pay him the $200 he demanded, but he refused to receive it, claiming they owed him $1,000; that appellee never at any time had title to the lots; and that his suing them as stated, and "all of his acts, were done with the express purpose to unlawfully cheat, swindle, and defraud them out of their homestead."

It was shown that in a suit brought by the state of Texas against Ben P. and Ella Washington to recover taxes due the state of Texas upon the lots involved in this suit for the years 1909 to 1912, inclusive, that Washington and wife, though duly served with citation, made default, and that on the 5th day of November, 1914, judgment was rendered in said suit for the state of Texas against Washington and wife for the sum of $80.80, with the 6 per cent. per annum interest thereon from date of judgment, and for costs of suit, as provided by the statutes in suits for delinquent taxes, including $3 as compensation allowed by law to the plaintiff's attorney, and for a foreclosure of the tax lien upon said property; that thereafter, to wit, on the 23d day of March, 1915, an execution and order of sale was issued upon said judgment and placed in the hands of the sheriff of Harris county, and that said sheriff, on the 1st day of April, 1915, executed said writs in manner and form as required by law, by levying upon and seizing said property, and that thereafter in manner and form as required by law advertised the same for sale, and thereafter, on the 4th day of May, it being the first Tuesday in said month, sold the same to William Giles, the plaintiff in the present suit, for $113.45, he having bid said sum for said property at said sale and his bid being the highest and best bid made therefor. Thereafter, on the same day, the said William Giles paid the sum so bid, and on said 4th day of May, 1915, said sheriff executed and delivered to said Giles a deed conveying to him said property.

It was shown that from the proceeds of the sale of said property the sheriff paid: (1) The sum of $83.22, same being the amount of the tax judgment, including $2.42 interest thereon from date of judgment to date of sale; (2) $3 attorney's fees, taxed as costs under the provision of the law; (3) district clerk's fees, taxed as costs, $3; (4) county clerk's fees, taxed as costs, $4; (5) advertising, 50 cents; (6) tax collector's fees, $4; (7) sheriff's fees, $1.50, for serving process in suit; (8) sheriff's fees for executing the writs by advertising sale, making sale, making deed, etc., $15.72 — a total of $113.45.

That on the 2d day of September, 1919, Ben P. Washington and wife executed and delivered to one N. T. Masterson a deed, by which they conveyed to him the property involved in this suit, for a recited consideration of "ten dollars and other valuable considerations"; that thereafter, on the 10th day of September, 1912, N. T. Masterson sold said property to the Texas Town Lot & Improvement Company, a corporation.

That in a suit brought by the city of Houston against Texas Town Lot & Improvement Company to recover taxes due upon said property to the city of Houston, said company, though duly served with citation, made default, and that on the 16th day of October, 1913, judgment was rendered in said cause for the city of Houston against said company for the sum of $111.45, with interest thereon from date of judgment, for costs of advertising taxes, making tax statements of said delinquent taxes, and for such costs incurred as is provided by law, and for a foreclosure of said city's tax lien on said property.

Thereafter, upon the proper issuance of execution and order of sale, the sheriff of Harris county levied upon and seized said property, and after giving legal notice of the proposed sale sold the same to the city of Houston on its bid of $134.50, said sum being the highest and best bid made therefor, and thereafter the proceeds of such sale were paid out by him as directed in said execution and order of sale, and said sheriff executed and delivered to said city a deed conveying to it said property.

Thereafter, to wit, on the 8th day of August, 1916, the city of Houston, by its deed of that date, conveyed said property to William Giles.

That in a suit brought by the city of Houston against Ben P. Washington and wife, Ella L. Washington, William Giles, and N. T. Masterson, trustee, to recover taxes for the year 1913, due the city upon the property involved in this suit, all of said parties, though duly served with citation, appeared not, but wholly made default, and that on the 10th day of April, 1915, judgment was rendered in said cause for the city against all of said parties for the sum of $64.90 due said city for taxes upon said property for 1913, with interest thereon from date of judgment, for costs of suit, together with costs of advertising the taxes due and making tax statements of said delinquent taxes for $3.24 costs as attorney's fee, and for a foreclosure of the city's tax lien on said property. That thereafter, upon the proper issuance of execution and order of sale, the sheriff of Harris county levied upon and seized said property and, after giving legal notice of the proposed sale, sold the property to appellee William Giles, upon his bid of $94.46, said bid being the highest and best bid made therefor, and thereafter the said Giles paid to said sheriff the sum so bid by him, and thereafter the proceeds of said sale were paid out by the sheriff as directed in and by said execution and order of sale; and thereafter the sheriff did execute and deliver to the said William Giles a deed conveying to him said property.

To rebut the foregoing showing made by the plaintiff Giles, the defendants offered only the testimony of Ben P. Washington, who testified as follows:

"My name is Ben P. Washington. My wife and myself are defendants in this case. I am acquainted with the property sued for, and claim to own it. I have owned it about 22 years. I went on there in 1900 and built the fence and had it surveyed and commenced filling it up. In 1901 I had a house moved up there. The old lady down there now, she is living in the house at the time, and I asked her to get out of the house. I had bought the house, and had the house moved up there, and then I built a barn 40 feet long and 16 feet wide, and I dug a well on it, and I have been filling...