Wilson v. Beck

• Decision Date: 01 May 1926
• Docket Number: (No. 9530.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 286 S.W. 315
• Parties: WILSON v. BECK et al.
• Court: Texas Court of Appeals

286 S.W. 315

WILSON v. BECK et al.

(No. 9530.)^*

Court of Civil Appeals of Texas. Dallas.

May 1, 1926.

Rehearing Denied June 19, 1926.

Appeal from District Court, Collin County; F. E. Wilcox, Judge.

Suit by J. D. Wilson against E. N. Beck and others. From a judgment against plaintiff, he appeals. Reversed and rendered.

E. S. McAlester and Thos. W. Thompson, both of Greenville, for appellant.

Smith & Abernathy, of McKinney, for appellees.

LOONEY, J.

No useful purpose could be served by stating at any great length the pleadings. Suffice it to say they presented for trial a suit by appellant for recovery of the 45-acre tract of land in controversy, to which the defenses urged by appellees were the general issue, pleas of not guilty, 10-year statute of limitation, and for rents and damages incident to, and growing out of, the possession and use of the land by appellant under the sequestration proceedings sued out by him.

The facts are undisputed, and are as follows:

In 1870 Sam Beck and his wife, Bettie Beck, mentioned in this record also as S. E Beck, S. E. Miller, and S. M. Miller acquired 95 acres of land, 45 acres of which is the land in controversy. This tract of land was the community property and homestead of Sam and Bettie Beck. Two children were born to them, the appellees herein, E. N. Beck and his sister, Mrs. Dollie Webb, also referred to as Dollie Phillips.

In 1872 Sam Beck was adjudged a lunatic by the county court of Collin county was admitted to the asylum for the insane at Austin, where he remained until his death which occurred February 20, 1920. He was without a guardian, died intestate, and no administration was ever opened on his estate. He was never divorced from Bettie Beck, nor was he ever discharged from the asylum.

In 1876 Mrs. Beck formed an alliance with a man by the name of Miller, with whom she lived as his wife four or five years, until his death, and by whom she had two children.

In 1897, acting under the belief that Sam Beck, the husband and father, was dead, Mrs. Bettie Beck and the two Beck children agreed upon a settlement and partition of the community estate of Sam and Bettie Beck, and, to this end, Bettie Beck, the mother, and Dollie Webb, the daughter, joined by her husband, W. R. Webb, executed a deed conveying to E. N. Beck 25¾ acres out of the 95-acre tract. The deed contains, among others, the following recitals:

"This is the deed of S. E. Miller, a feme sole, formerly the wife of Sam Beck, deceased, and subsequently the wife of J. A. Miller, also deceased, and W. R. Webb, joined by his wife, M. E. Webb, to E. N. Beck."

Also the following:

"And the further consideration of making a division of the estate of Samuel Beck, deceased."

In further consummation of said partition and settlement, Bettie Beck and E. N. Beck and his wife, M. A. Beck, executed a deed conveying to W. R. Webb and his wife, M. E. Webb, 25¾ acres of land out of the 95-acre tract before mentioned. This deed recites, among other things, the following:

"S. E. Miller, a feme sole, formerly the wife of Samuel Beck, deceased, subsequently the wife of J. A. Miller, also deceased, and E. N. Beck, joined by his wife, M. A. Beck, all of the county and state aforesaid, to W. R. Webb and wife, M. E. Webb. * * *"

This deed also contains the following recital:

"And the further consideration of making a division of the estate of the said Samuel Beck, deceased."

No written conveyance was made by the Beck children to their mother to the 45 acres in controversy, but the partition and settlement was acted upon by all parties. E. N. Beck took possession, improved and resided upon the 25¾ acres conveyed to him, and it was in his ownership at the time this case was tried. Dollie Webb took possession and control, and afterwards sold the 25¾ acres conveyed to her, and it is now in the possession and ownership of the parties claiming under and through her. Mrs. Bettie Beck, or Miller, retained possession of the 45 acres in controversy, being the remainder of the 95-acre tract. She used the land, and enjoyed the rents and revenues therefrom exclusively from the time of said partition and settlement until September 26, 1910, and on the latter date sold and conveyed the same to D. T. Phillips, reciting in the conveyance to Phillips that she was a "feme sole." The recited consideration for this conveyance was $1,490 cash, and $1,490 evidenced by five vendor's lien notes, negotiable in form, bearing 8 per cent. interest per annum and containing the usual provisions for the payment of 10 per cent. attorney's fees, and for accelerated maturity in case of default. In these notes, and also in the deed conveying the land to Phillips, a lien was expressly retained on the land to secure the payment of the notes according to their tenor.

On October 17, 1910, D. T. Phillips and wife conveyed the land to C. E. Freeman, subject to the lien of the purchase-money notes just described, but there was no personal assumption of the indebtedness by Freeman.

The appellant became the holder and owner of these notes, and, after default in the payment of the first two, exercised the option to declare the other three due, and thereupon filed suit in the district court of Collin county on, to wit, January 18, 1913, for the debt and to foreclose the vendor's lien on the land against S. E. Miller, the grantor in the deed, D. T. Phillips, grantee and maker of the notes, and C. E. Freeman, the purchaser of the land from Phillips.

These defendants were duly cited, Mrs. Miller, or Beck, by a nonresident notice, as she was at the time a resident of the state of Oklahoma. Neither of the defendants answered and, on September 23, 1913, judgment by default was rendered against them. On motion, however filed at the same term of court by the defendant Freeman, the judgment was set aside. It was disclosed in the motion for new trial filed by Freeman that the defendant S. E. Miller (Bettie Beck) was a married woman, and that her husband, Sam Beck, was alive and a necessary party to the suit. Sam Beck was never made a party, the case seems to have slumbered on the docket in this status until after his death, when, on May 24, 1920, appellant took judgment by default against D. T. Phillips and Mrs. Miller for the amount of the debt, interest, and attorney's fees, to wit, $3,449.50. with interest thereon at 8 per cent. per annum, and foreclosure of the vendor's lien on the land as to all defendants. The land was sold on September 7, 1920, by virtue of an order of sale that issued on this judgment, and at the sale was purchased by appellant on his bid of $300. The land at the time seems to have been of a fair value of $9,000.

The order of sale under which this was accomplished omitted entirely any mention of C. E. Freeman, one of the defendants, but it appears that, after the institution of this suit, under an alias order of sale correctly describing the judgment, the land was, on February 1, 1921, levied upon, advertised, and the interest of C. E. Freeman sold, appellant also becoming the purchaser at this sale. The facts with reference to the alias order of sale are to be found in the allegations of both appellant and appellees, and were in that manner presented to the court below and to this court.

On January 21, 1921, appellant sequestered the property, and, as E. N. Beck, who was in possession at the time, failed to replevy, appellant in due time executed and filed a replevy bond with W. A. Wilson and J. B. Wilson, Jr., sureties, and took possession of the property.

The rental value of the land from the date appellant took possession under the replevy bond to the time of trial, to wit, September 20, 1924, was $1,627.50. During this period the premises were damaged in the sum of $1,200 by the destruction of a barn by fire, and because the land was permitted to become foul from noxious grasses.

On September 28, 1910, the second day after his mother conveyed the land to D. T. Phillips, and ten years and two days prior to the filing of this suit, E. N. Beck moved on the land possessed, improved and used the same until dispossessed by sequestration in 1921. At and prior to the time E. N. Beck moved on the land, as just stated, it was occupied by and in the possession of his son-in-law, a man by the name of McDonald, who held under a rental contract between him and the former owner, Mrs. Miller, or Beck, and E. N. Beck was permitted to enter into and upon the premises under an agreement made with this son-in-law.

As the conclusion of fact on this point is on a pivotal question, we will quote the testimony of E. N. Beck upon which the same is based. Beck said:

"My son-in-law, McDonald, was living upon the land in question, and holding same under a rental contract from my mother at the time the deed was made to the land in question to D. T. Phillips. A few days after the deed was executed by my mother and the other parties to the land in question, not more than three or four days afterwards, I moved onto the land. * * * I had an agreement with my son-in-law by which I was to take possession of the land and premises in question."

Beyond the testimony of Beck as just quoted there is nothing in the record showing the duration, nature, or terms of the rental contract between Mrs. Beck (or Miller) and McDonald.

The case was tried without the intervention of a jury, and resulted in judgment against appellant and in favor of E. N. Beck on his plea of limitation against appellant Dollie Webb and her husband, W. R. Webb, Mrs. Sam (Bettie) Beck, and C. E. Freeman, and also against appellant and sureties on his replevy bond, in the sum of $2,827.50. It was further adjudged that Mrs. Sam (Bettie) Beck and C. E. Freeman take nothing by their pleas of intervention.

The court gave judgment against appellant and in favor of appellee E. N. Beck on the grounds: (1) That appellant failed to show title to the land in himself at the institution of the suit;...