White v. Glenn

• Decision Date: 11 March 1940
• Docket Number: No. 5126.,5126.
• Citation: White v. Glenn, 138 S.W.2d 914 (Tex. App. 1940)
• Parties: WHITE et al. v. GLENN.
• Court: Texas Court of Appeals

Page 914

138 S.W.2d 914

WHITE et al. v. GLENN.

No. 5126.

Court of Civil Appeals of Texas. Amarillo.

March 11, 1940.

Rehearing Denied April 8, 1940.

Appeal from District Court, Lynn County; Louis B. Reed, Judge.

Suit in trespass to try title by H. C. Glenn, receiver for the Temple Trust Company, against Alvin O. White and others to recover possession of a certain tract, wherein defendants filed a cross-action. From a judgment for plaintiff, defendants appeal.

Affirmed.

R. A. Baldwin, of Slaton, for appellants.

Jno. B. Daniel, of Temple, for appellee.

JACKSON, Chief Justice.

This suit was instituted in the District Court of Lynn County, Texas, by the appellee, H. C. Glenn, the duly appointed and acting receiver for the Temple Trust Company, as an action in trespass to try title against Alvin O. White in the capacity of community administrator of the community estate of himself and his deceased wife, Esther White, against him individually and his present wife, Lily White, the adult appellants herein, and against William Frank White, Howard Miller White and Aneta June White, the minor appellants, to recover title and possession to the south 220 acres of Section No. 1 in Block D-23, Lynn County, and described by metes and bounds as follows:

"Beginning at a 2 inch iron pipe set in center of east-west and north graded roadway, the S W corner of section 4, Block M, and the S E Corner of said Section 1, and in the North line of Wilson County School League No. 2, for the S E Corner of this tract;

"Thence North along center line of graded roadway 617.6 varas for the N E Corner of this tract, 2 inch pipe set 7.2 varas west of corner; the N E Corner of Section 1 is north 1182 varas in center of graded roadway extending west; the N W corner of said section 4 is 73 varas north of the N E corner of Section 1 and is marked with 4 inch well casing, graded roadway extends east therefrom;

"Thence West 2011 varas to center of north-south graded roadway, the west line of Section 1 for the N W Corner of this tract, iron pipe set 7.2 varas east of corner;

"Thence South along center line of graded roadway 617.6 varas to iron shaft set in center of east-west graded roadway, the S W corner of said Section 1, and the S W corner of this tract;

"Thence East along center line of graded roadway 2011 varas to the place of beginning, containing 220 acres of land, more or less."

R. A. Baldwin, the attorney for the adult appellants, was appointed by the court as guardian ad litem for the minor appellants. No answer was filed by Alvin O. White in his capacity as community administrator but the adult appellants answered by a plea of not guilty and presented a plea in trespass to try title to an undivided 200 acres in the section constituting the homestead.

They attacked the proceedings in two former suits, Cause No. 958 and Cause No. 1047, and sought to have the judgments therein vacated and held for naught, contending that the records in said causes disclosed that the proceedings therein were void on their face. They alleged that Section 1, Block D-23 was the community property of the first marriage; that the minor appellants inherited an undivided one-half interest in said section and Alvin O. White owned the other undivided one-half interest therein; that at all times Mr. White had with his family occupied such section as his homestead.

The minor appellants by their guardian ad litem alleged in substance the same matters urged by the adult appellants and in addition pleaded title to an additional 120 acres of the section; that Cause No. 958 was invalid as to them for want of service and on account of the fraud on the part of appellee, since he neither had nor claimed any debt against the minor appellants nor any lien against their undivided interest in the property but with knowledge of their ownership sought and obtained a foreclosure of a purported abstract judgment lien on 120 acres of their land.

The minor appellants alleged that the proceedings in Cause No. 1047 were invalid as appellee with knowledge of their title fraudulently had the entire section partitioned and 220 acres thereof set apart to him. They prayed for the cancellation of the judgment in Causes Nos. 958 and 1047 because void on the face of the records and that they recover title and possession to the land that had been appropriated by appellee under his asserted lien.

The case was submitted to the court without a jury and judgment rendered that appellee, for the benefit of the Temple Trust Company, have and recover from all of the defendants the south 220 acres of said section, giving the metes and bounds thereof as contained in the petition, from which judgment this appeal is prosecuted.

The appellants by numerous assignments of error, which we shall consider together, assail the validity of the judgment in Cause No. 958, the sale and sheriff's deed thereunder because the description of the land in such proceedings is so patently defective that such instruments are void and extrinsic evidence was not admissible to identify the land and no title passed thereby.

Alvin O. White and Esther Young were married April 21, 1919, and lived together as husband and wife until April 21, 1926, on which date Esther White died intestate. Three children were born to this union, William Frank White, Howard Miller White and Aneta June White, and they are the minor appellants in this litigation. On June 29, 1920, Alvin O. White and his wife, Esther, acquired title to Survey No. 1 in Block D-23, State School Land, containing 640 acres, situated in Lynn County, Texas, on which they established and maintained their homestead with their children until the death of Esther White. Mr. White and Lily Chancelor were married on May 4, 1929, and have since lived together as husband and wife with the children of the first marriage and continue to occupy the homestead on said survey. On October 7, 1929, Mr. White and his second wife, Lily, executed and delivered to the Temple Trust Company, a corporation, their promissory note for $2,400. They defaulted in the payment thereof and on June 14, 1932, the Temple Trust Company obtained a judgment on this note in the District Court of Lubbock County in Cause No. 4974 against Mr. White, his second wife, Lily, and Jeff Graham, for the sum of $2,670.83, with interest thereon from date at the rate of 10% per annum and a decree foreclosing a lien given to secure the payment of said note on certain lots in Slaton, Texas. The property against which the lien was foreclosed was duly advertised, sold as under execution and purchased by the Temple Trust Company for $1,200 and after the cost was paid the judgment was credited with the balance of $1,144.94.

A pluries execution on March 1, 1932, was issued out of the District Court of Lubbock County in Cause No. 4974 directed to the proper officers of Lynn County commanding that they out of the goods and chattels of Alvin O. White make the sum of $1,529.29, with interest and cost, which constituted the unpaid balance of the judgment obtained in the District Court of Lubbock County. The sheriff of Lynn County levied this pluries execution on the following land situated in Lynn County, to-wit: "440 acres out of Section 1, Block D-23, and being all of said section except 200 acres out of the Northeast Corner thereof designated by the said Alvin O. White as homestead." The property was advertised and on June 7, 1932, was sold by the sheriff to Alvin O. White for the sum of $1.50, that being the highest and best bid therefor and the sheriff executed to him a deed for the land containing the exact description set out above from the sheriff's return on the pluries execution. On the same day Alvin O. White and his second wife, Lily, for a recited consideration of $10 and love and affection, made a deed to the minor appellants in which the property is described as: "440 acres of land out of Section No. One (1), Block D-23, Abstract No. 838, public school land, W. D. Nevels, Original Grantee", in Lynn County, Texas.

The Temple Trust Company had another pluries execution issued to the sheriff of Lynn County, who levied upon, advertised and sold to Temple Trust Company the land levied upon by the same description heretofore given from his return on the first pluries execution.

Appellee herein on June 10, 1933, instituted a partition suit, Cause No. 958, in the District Court of Lynn County, Texas, against the adult appellants and the minor appellants in this suit naming some other defendants who are unnecessary to a consideration of this appeal. The petition for partition alleged that Section 1, Block D-23, contained 640 acres; that the minor appellants were joint owners with appellee of 440 acres out of said Section 1, which was all of said section except 200 acres in the northeast corner which constituted the homestead of Alvin O. White, and that appellee owned the other undivided interest in said 440 acres. On August 28th thereafter, the adult appellants filed their original answer and Alvin O. White answered as father and next friend for the minor appellants. The appellee, on October 14th, filed a first amended original petition in Cause No. 958 and after repeating, in effect, in a first count the allegations of his original petition, pleaded in the alternative in a second count the judgment obtained in the District Court of Lubbock County, the sale of the property upon which a foreclosure was had therein, the unpaid deficiency of his judgment; that he had an abstract thereof made, filed, properly recorded and indexed in the office of the County Clerk of Lynn County and thereby acquired a valid abstract judgment lien on the undivided one-half interest of Alvin O. White in 440 acres in said Section 1, the excess over the 200 acres claimed by Alvin O. White as a homestead and prayed that if not permitted to recover in his first count for partition that he be decreed a foreclosure of his abstract judgment...