Williams v. Tooke, 5180.

• Citation: 116 S.W.2d 1114
• Decision Date: 07 March 1938
• Docket Number: No. 5180.,5180.
• Parties: WILLIAMS et al. v. TOOKE et al.
• Court: Court of Appeals of Texas

116 S.W.2d 1114

WILLIAMS et al. v. TOOKE et al.

No. 5180.

Court of Civil Appeals of Texas. Texarkana.

March 7, 1938.

Rehearing Denied March 24, 1938.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Gregg County; W. H. Strength, Judge.

Suit by Susie Williams and others against Allen Tooke and others to set aside a judgment foreclosing certain vendor's liens, wherein certain parties intervened. From an adverse judgment, the plaintiffs appeal.

Affirmed.

D. B. Chapin, of San Antonio, Edward A. Brown, of Longview, and Tuck Chapin, of San Antonio, for appellants.

Turner, Rodgers & Winn, of Dallas, Wynne & Wynne, of Longview, Bromberg, Leftwich, Carrington & Gowan, of Dallas, Phillips, Trammell, Estes, Edwards & Orn and James & Connor, all of Fort Worth, Black & Graves, of Austin, T. L. Foster, Roy C. Ledbetter, Thos. R. Freeman, Chas B. Ellard, and Geo. W. Schmucker, all of Dallas, Frank F. Allen, of Fort Worth, Grover Sellers, of Dallas, Lee, Porter & Latham, Campbell & Leak, John T. Buckley, and James R. Curtis, all of Longview, J. W. Timmins and Walace Hawkins, both of Dallas, Bramlette & Levy, of Longview, Rufus S. Garrett and Edward R. Hudson, both of Fort Worth, Loftin V. Witcher, of Shreveport, La., S. J. Calloway, of Fort Worth, Abney & Caven, of Marshall, and Ramey, Calhoun & Marsh, of Tyler, for appellees.

HALL, Justice.

On November 4, 1933, appellants brought this suit against appellees in the district court of Gregg county to set aside and annul a judgment of the district court of Gregg county, No. 2985 on the docket of said court, rendered on December 12, 1918, wherein B. F. Phillips was plaintiff and appellants were defendants, foreclosing three certain vendor's lien notes given by Porter Williams to B. F. Phillips as part purchase price for a tract of land containing 102.26 acres, situated in Gregg county. This land is located in the East Texas oil field and has produced and still is producing large quantities of oil. Some of the appellants are the surviving wife and children of Porter Williams. As grounds for setting aside said judgment, appellants alleged: (1) "That the petition upon which it is based shows on its face that said Porter Williams had died within the administrative period, and it contains no allegation that there was no administration pending upon his estate and no necessity therefor existed;" (2) that the option of acceleration contained in said vendor's lien notes given by Porter Williams to B. F. Phillips as part of the purchase price for said land could not be exercised against Porter Williams' widow and minor children; (3) that such judgment was based upon confession of the guardian ad litem for said minor defendants (appellants); and (4) that "said judgment shows upon its face that there was no person before the court which authorized the court to render judgment foreclosing said vendor's lien."

Appellants also sued to cancel all transfers of this property or interests therein executed since the rendition of such judgment; for the right to redeem same from the vendor's lien; and for an accounting of the oil produced from said land. As further grounds for avoiding said judgment, appellants alleged that they were not served with citation in cause No. 2985; that the vendor's lien notes sued on had been paid. They also alleged fraud upon the part of Judge J. N. Campbell, their attorney and legal advisor, in conducting their case; and fraud in the purchase of the land at sheriff's sale by John T. Buckley.

Appellees answered by general denial, plea of not guilty, and alleged, further, that they were innocent purchasers for value without notice; that the judgment in cause No. 2985, sought to be set aside, was valid; that appellants' action was barred by the three, four, five, and ten years' statutes of limitation; that appellants' cause was barred by laches and lack of diligence; appellees also pleaded estoppel by reason of certain deeds executed by Susie Williams, surviving wife of Porter Williams, and one of the appellants, and her attorney in fact, covering all or a part of the land in controversy; and a disclaimer filed by attorneys for Susie Williams in a former suit covering all or part of the land in controversy. Appellees also alleged improvements in good faith; and some of the appellees pleaded in bar a judgment entered in the district court of Gregg county on March 9, 1932, covering a portion of the land in controversy. Certain parties intervened, setting up interests through Susie Williams and her children acquired after the rights of appellees had attached. We shall take no further notice of them for the reason that their rights are dependent upon the claims of Susie Williams and her children. The cause was tried to a jury on special issues. Upon verdict of the jury judgment was rendered for appellees, and appellants prosecute this appeal.

The record discloses that B. F. Phillips on March 14, 1917, conveyed to Porter Williams the land in controversy for a consideration of $785 cash and three vendor's lien notes, two for the sum of $250 each, and one for $300, due one, two, and three years, respectively, and containing an acceleration clause to be exercised at the option of the holder.

Porter Williams died December 11, 1917, intestate, and left surviving him his widow, Susie Williams, and eight minor children. As alleged by appellants, Phillips made demand on Susie Williams after Porter Williams' death, and after the first note had become due and was unpaid, for payment of the entire indebtedness evidenced by the three vendor's lien notes; and, upon being refused payment by her, filed suit against her and the minor children on November 6, 1918, to foreclose his lien evidenced by said notes and subject the property here in controversy to the payment of same. The petition filed by Phillips for the foreclosure of said lien is too long to set out, so we shall summarize it as follows: It alleges the names and residences of the parties; their relation to Porter Williams, deceased, as his sole surviving heirs; the execution and delivery by Porter Williams of the notes, and the existence of a valid vendor's lien to secure their payment; that Phillips is the owner of said vendor's lien notes; that said notes contained an acceleration clause; and that he, Phillips, has exercised said option and declared all the notes due and payable. It alleged further demand and failure to pay said notes; that the defendants (appellants) are in possession of the land by inheritance and the same is subject to the indebtedness evidenced by said notes; that said notes provide for attorney's fees. Their prayer is for the establishment of the debt; foreclosure of the vendor's lien upon said land; and for an order of sale. The record reflects that this suit was filed within the four-year period after Porter Williams' death, and the original petition contains no allegation that no administration was pending on Porter Williams' estate and that none was necessary. It is admitted that there was no administration pending on Porter Williams' estate on the date of the filing of that suit, nor has any been taken out to this date. On December 12, 1918, a judgment in cause No. 2985 was rendered by the district court of Gregg county as follows:

                "In the District Court of Gregg County
                    Texas
                      "December 12th, A. D. 1918
                "B. F. Phillips vs. Susie Williams et al
                    No. 2985
                

"On this day came on to be heard the above styled and numbered cause. Plaintiff appeared by his attorney. Defendant, Susie Williams, appeared by her attorney and by answer filed, and the other defendants, who are minors, having been duly cited to appear and answer this suit and J. N. Campbell, attorney at law, having been appointed by the court as guardian ad litem, to represent the true interests of said minors, appeared by their said guardian ad litem, and all parties announced ready for trial. Jury having been waived, all matters of fact, as well as of law, were submitted to the court. The court having heard pleadings of the parties and the evidence offered, finds that plaintiff's cause of action is based upon three certain notes, liquidated demands, said notes being secured by the vendor's lien on the hereinafter described real estate; further that said three notes aggregate the principal sum of eight hundred dollars, the date of said notes being March 14th, 1917, and each note providing for ten per cent interest thereon from date until paid, said notes executed originally by Porter Williams and being payable to B. F. Phillips, or order, and the court finds, in this connection, that said notes are now the property of the said B. F. Phillips, plaintiff; and the court further finds that said notes contain a provision that ten per cent of the principal and interest due shall be added as attorneys fees, in the event suit should be filed thereon, and the court finds that it was necessary to file this suit; and the court further finds that each of said notes contains a provision that failure to pay same, or any installment of interest thereon, when due, shall give the holder of said notes the right to declare all of said series due, and the Court finds that the said plaintiff has elected to declare all of said notes due upon default in payment, which default it finds has occurred. The court further finds that the plaintiff is entitled to recover upon his said notes the said sum of eight hundred dollars, in the aggregate, together with ten per cent thereon from March 14th, 1917, to this date, and in addition, ten per cent additional upon the said sum of eight hundred dollars and the interest accrued, as aforesaid, as attorneys fees; the court further finds that plaintiff is entitled to have his lien on said land, as same has existed on same since March 14th, 1917, foreclosed, the said Susie Williams, by her answer having confessed said debt to be true and the amount thereof to be stated correctly, and the said J....