Wilson v. Vance

• Decision Date: 04 December 1963
• Docket Number: No. 5583,5583
• Citation: 373 S.W.2d 848
• Parties: Maud Lillian WILSON, Individually and as Independent Executrix of the Estate of J. R. Wilson, Deceased, Appellant, v. Clyde R. VANCE et al., Appellees.
• Court: Texas Civil Court of Appeals

Page 848

373 S.W.2d 848

Maud Lillian WILSON, Individually and as IndependentExecutrix of the Estate of J. R. Wilson, Deceased, Appellant, v.Clyde R. VANCE et al., Appellees.

No. 5583.

Court of Civil Appeals of Texas, El Paso.

Dec. 4, 1963.

Rehearing Denied Jan. 8, 1964.

Thompson, Walker, Smith & Shannon, Paul C. Cook, Fort Worth, Hill D. Hudson, Pecos, for appellant.

John P. Dennison, Ralph E. Page, Pecos, for appellees.

CLAYTON, Justice.

Suit was brought against appellant individually and as Independent Executrix of the Estate of J. R. Wilson, Deceased, to set aside trustee's sales under four deeds of trust covering a section of land in Reeves County, Texas.Appellant filed a counter-claim in trespass to try title against the four appellees, and also joined as cross-defendantBillie Sol Estes, who had purchased the land in controversy from appellant's deceased husband and had executed four deeds of trust in favor of the husband and then had conveyed the land to appellees and leased it back from them.Motions for summary judgment were filed by appellees and also by appellant on the basis of pleadings and depositions.The trial court overruled appellant's motion for summary judgment and granted appellees' motion for summary judgment, and this appeal resulted.

The essential facts are not in dispute.On March28, 1956 J. R. Wilson, later deceased, joined by his wife, appellant herein, conveyed by four separate deeds a section of land in Reeves County, Texas to Billie Sol Estes.A vendor's lien was retained in each of said deeds to secure the unpaid balance of the purchase price represented by notes executed by Estes, and four separate deeds of trust, to further secure such indebtedness, were executed by Estes to A. C. Parks, trustee for the benefit of Wilson.These deeds of trust were filed for record in Reeves County on March 30, 1956.Upon the death of Wilson, appellant became the legal and equitable owner of the notes.Estes became delinquent in his payments on said notes.In April, 1960, L. T. Wilson, a Wichita Falls attorney and son of the appellant herein, obtained a partial payment from Estes on the delinquent portion of said notes, but the notes were not brought up to current status and suit was filed by appellant against Estes to recover on the notes, plus interest and attorney's fees.This suit was filed in Wichita County, L. T. Wilson claiming in his deposition that this was done at the request of Estes, who is alleged to have stated that a suit in Reeves County would throw him (Estes) into bankruptcy.Although the petition in said suit pleaded the existence of the deeds of trust and asked their foreclosure, the judgment that was entered in the suit was a purely money judgment and no mention was made of foreclosure of the liens.The judgment was dated August 8, 1960, but it was not filed with the clerk of the court until February 16, 1961.These are points that will be subsequently discussed at more length.

On the 31st day of October, 1960, Estes conveyed, by four separate deeds, the surface of the land in question to the four appellees, and simultaneously with said deeds, each grantee leased the land deeded to him back to Estes.Apparently unaware of these conveyances, appellant, by letter of March 17, 1961, authorized the trustee, Parks, to proceed under the terms of the four deeds of trust to conduct trustee's sales.Pursuant thereto, notices of the sales were posted and the sales took place on May 2, 1961, the property being struck off to appellant as Independent Executrix of the Estate of J. R. Wilson, Deceased.Appellees' suit to set aside the trustee's deeds followed in June, 1961 and, as stated, resulted in summary judgment being granted to appellees.

In the judgment, the trial court found that appellant had elected to invoke the remedy of judicial foreclosure of her deed of trust liens rather than through the exercise of the power granted under the said deeds of trust, and that the remedy so elected was pursued to a conclusion and that the issue of judicial foreclosure was finally determined by the court in Wichita County.Appellant's second point of error is assigned to this finding of the trial court.The court further found that the trustee had failed to give sufficient notice of his proposed trustee's sales by posting notices in three public places in Reeves County, where the property was situated, and this holding is the basis of the first point of error.The third point of error relates to the court's refusal to grant appellant's motion for summary judgment for title and possession of the land in controversy.

We direct our attention first to appellant's second point of error which relates to the court's finding that appellant had elected to follow, and had pursued to conclusion, her remedy of judicial foreclosure of her deed of trust liens, and therefore was barred from later exercising her alternate remedy of foreclosure out of court under the power granted her under the said deeds of trust.What seems to be the prevailing rule in Texas relative to election of inconsistent remedies was enunciated in Seamans Oil Co. v. Guy, 262 S.W. 473(Tex.Com.App., 1924; adopt.Opinion) as follows:

'If one having a right to pursue one of several inconsistent remedies makes his election, institutes suit, and prosecutes it to final judgment or receives anything of value under the claim thus asserted, or if the other party has been affected adversely, such election constitutes an estoppel thereafter to pursue another and inconsistent remedy. * * *'10 R.C.L. 703, 704.'

In a review of the facts in the Seamans Oil case on certified question, the Commission of Appeals(276 S.W. 424, 1925, adopt.Opinion) repeated the above-stated rule, while especially holding that a decision was not required on the question of whether, under all circumstances, the mere filing of a suit, which is not prosecuted to judgment, based on an inconsistent cause of action, is an irrevocable election to rely on the remedy being sought, and a complete bar to an action thereafter filed seeking relief which is repugnant to that claimed in the former suit.See also: Election of Remedies, 6 A.L.R.2d 20, 76, 77.In 21 Tex.Jur.2d 208, 209, sec. 10, Election of Remedies, it is set out that the mere institution of suit or application for a remedy does not constitute an election of remedies, unless it appears that the litigant has received some benefit or that his opponent has suffered some loss or detriment.(Seecases cited to the text.)Since this same rule has been applied to choice of remedies which are not inconsistent but are alternative and concurrent (State v. Compton, Tex.Civ.App., 174 S.W.2d 977, syl.2, 3), we deem it unnecessary to determine the character of the remedies available to appellant in the instant case.

Appellant strongly urges that if there was an attempt to obtain judicial foreclosure in the suit filed in Wichita County, the appellant had abandoned such attempt.In other words, she seeks to reconcile her position with the holding in the Seamans Oilcase, supra, by showing that she had neither pursued her pleaded remedy of foreclosure to final judgment in the Wichita County suit, nor had she received anything of value under such claimed remedy, and the other party therein and the appellees herein had not been affected adversely by the assertion of such remedy.To sustain this position she relies heavily upon the case of Ferrantello v. Paymaster Feed Mills, 336 S.W.2d 644(Tex.Civ.App., 1960, Ref.N.R.E.).The cited case as nearly approaches the facts in the instant case as any we have been able to find.In that casethe appellee sued one Bezner on a number of purchase money notes and for foreclosure of chattel mortgage liens on some chickens.He also sued the Ferrantellos for damages for alleged conversion of a part of the chickens which he claims were subject to the recorded mortgages at the time of the purchase by the Ferrantellos of the chickens from Bezner.Under a plea of privilege the cause of action against the Ferrantellos was transferred to Dallas County.During the pendency of the suit against Bezner certain payments on the notes were made by the latter and credited to his account.Thereafter an agreed money judgment was entered against Bezner for the balance due on the notes, but the judgment did not provide for foreclosure of the chattel mortgages.The Ferrantellos in the Dallas case then entered a plea in abatement and motion to dismiss grounded on the theory that by proceeding to judgment against Bezner on the notes (on which partial payment had been made during pendency of the suit) the Feed Mills, as a matter of law, had made an election of remedies and was estopped from recovering judgment against the Ferrantellos for alleged conversion of some of the mortgaged property.The trial court overruled the plea and motion, and in so doing was sustained by the Court of Civil Appeals, the latter holding:

'The judgment against Bezner was not a judgment of foreclosure.It was a simple money judgment for the balance due after allowing Bezner credits for payments made.True, appellee in its original petition plead for foreclosure; but the mere institution of a suit for foreclosure without prosecuting the suit to a judgment of foreclosure does not constitute an election of remedies under the circumstances here present.Texas Building & Mortgage Co. v. Rosenbaum, Tex.Civ.App., 159 S.W.2d 554, 558;Seamans Oil Co. v. Guy et al., 114 Tex. 42, 262 S.W. 473;Lewis et al. v. Powell, Tex.Civ.App., 205 S.W. 737.'

Appellant in the instant case maintains that the judgment entered by the Wichita Countycourt was an agreed judgment, and that the circumstances herein bring this case directly in line with the holding in the Ferrantello case.It appears that in the Wichita County case the attorney for appellant and an attorney for Estes conferred about the case and it was arranged that Estes would make a...