Jones v. Willoughby , 1951 Tex. App. LEXIS 1890 ( 1951 )

PRICE, Chief Justice.

This is an appeal by Ernest Jones from a summary judgment entered on the motion of Ray W. Willoughby, the defendant in the cause. Ernest Jones and wife will be hereinafter referred to as plaintiffs and Ray W. Willoughby as defendant. It was a suit in trespass to' try title and to set aside a judgment of foreclosure on account of inadequacy of description of the land involved. Plaintiffs in their petition described the lands sued for as situated in Brewster County, Texas, (a) all those certain lands described in and conveyed by that certain deed dated August 1, 1945, executed by Gilmer A. Morris and wife, recorded in Volume 107, pages 19 et seq., of the deed records of Brewster County, Texas, to the said Ernest Jones; (b) all those certain lands and premises described in and conveyed by that certain deed dated August 29, 1946, executed by Frank Reeder and wife to the said Ernest Jones, recorded in Volume 109, pages 542 et seq., of the deed records of Brewster County, Texas; (c) all those certain lands and premises described in and conveyed by that certain deed dated August 27, 1946, executed by L. C. Purnell and wife to the said Ernest Jones, recorded in Volume 109, pages 540 et seq., of the deed records of Brewster County, Texas. Applicable to each of the foregoing tracts the following averment is made: “ * * * and reference is here made to all such deeds above mentioned and their said respective records for a more particular description of said lands herein sued for, and by such reference same are here made a part hereof in this petition.” Plaintiffs further plead recovery by defendant Willoughby against Jones and wife on September 19, 1949, of a judgment in cause No. 2525 on the docket of the court. This judgment was alleged to be in the sum of $55,024.17, and provided for foreclosure of certain alleged or purported deed of trust liens recited. Reference is made to said judgment as filed among the papers in said cause and as recorded in the minutes of said court, for all purposes, and same by such reference are hereby made a part of the petition. It is further alleged that for want of description of the land foreclosed upon said judgment was entirely void as a foreclosure and the said instruments which the judgment purports to foreclose are likewise each and all averred to be void for want of sufficient description of the land. Recovery of the land as described in the petition is sought, the setting aside of the various deeds of trust and the judgment of foreclosure.

Defendant answered by special exceptions and answered in bar as follows: “For answer herein, if required, this defendant denies all and singular the allegations of facts alleged by plaintiff other than the contents of the records referred to, and of this he puts- himself upon the country.”

The special exceptions urged by defendant were not passed upon. The defendant thereafter filed a motion for a summary judgment. This motion was unverified, neither party filed affidavits nor were there any -stipulations as to facts or admissions. In substance the motion invoked the judgment as set out in plaintiff’s petition, and said that the record showed it was the same land involved herein. The court sustained the motion of defendant for the summary judgment and decreed that the plaintiffs take nothing. The judgment recites that * '* the court proceeded to examine the pleadings, matters of record and such motion on file herein, and after hearing the argument of counsel is of the opinion and so finds that defendant, Ray W. Wil-loughby, has given notice of said motion for summary judgment as provided by the rules, that there exists no genuine issue as to any material facts between the parties, in fact, as a matter of law the defendants herein are not guilty of the wrongs and trespasses alleged by plaintiffs. * * * ”

Contained in the transcript as same was filed herein by appellant is plaintiff’s petition, defendant’s answer, defendant’s motion for summary judgment. On our own motion in pursuance of Texas Rule of Civil Procedure No. 428 we ordered the court to send up certified copies of the following instruments:

First: A certified copy of the judgment and pleadings in cause No. 2525 wherein Ray W. Willoughby was plaintiff and Ernest Jones and wife Louise Jones were defendants; Second: Certified copy of the order of sale issued in said cause No. 2525, together with Sheriff’s return; Third: Copy of alias order of sale dated December 7, 1949, in said cause No. 2525, together with Sheriff’s return thereon; Fourth: Certified copy of deed dated January 3, 1950, executed by Jim Skinner, Sheriff of Brewster County, Texas, to Ray W. Wil-loughby, copy of the deed filed in the court below in this cause; Fifth: Certified copy of deed by Gilmer A. Morris and wife to Ernest Jones, recorded in Vol. 109, pages 19 et. seq., of the deed records of Brewster County, Texas; Sixth: Certified copy of deed filed in this cause dated August 29, 1946, from Frank Reeder and wife to the said Ernest Jones, recorded in Vol. 109, pages 542 et. seq., of the deed records of Brewster County, Texas; Seventh: Certified copy of deed filed in this cause from L. C. Purnell and wife to Ernest Jones dated August 27, 1946, recorded in Vol. 109, pages 540 et. seq., of the deed records of Brewster County.

Plaintiff averred in substance that he had filed certified copies of the above deeds wherein he was grantee and a certified copy of the judgment in cause No. 2525; certified copy of order of sale issuing thereon together with the Sheriff’s return; certified copy of the deed from the Sheriff to him, certified copy of deed dated January 3, 1950 from Jim Skinner as Sheriff to Ray W. Willoughby. It is averred the above listed certified copies having been so filed in said cause and this notice thereof here given under the provisions of Rule 798 of Rules of Practice and Procedure in civil actions promulgated by the Supreme Court of Texas. Said Rule 798 is as to title from a common source providing in substance that plaintiff may make proof by certified copies of tlie deeds showing a chain of title' to the defendants emanating from and under such common source. In such rule it is provided such certified copies shall not be evidence of title in the defendant unless offered in evidence by him. Plaintiff may make any legal objection to such certified copies or the originals thereof when introduced by the defendant.

At the time the order was made the majority of the court was of the opinion that each and all of the above recited instruments were part of the record herein, and that the trial court and this court were entitled to consider same in passing on the motion for summary judgment. This action was thought to be in conformity with the authority conferred by Rule or Civil Procedure No. 428. We are now of the opinion that the copies of the deeds filed by plaintiff as showing a common source were no part of the record proper, and their inclusion in the transcript was error. We are forced to this conclusion by the very terms of the rule authorizing the filing of such instruments for the purpose of showing common source. Rule 798 specifically provides such certified copies shall not be evidence of title in the defendant unless offered by him. It is not thought that the giving of notice in the petition of the filing of the copies of such deeds made same a part of the petition and part of the record in the cause.

The judgment in cause No. 2525 stands on a somewhat different footing. This judgment, by reference thereto is specifically made a part of plaintiff’s petition. It would seem to exalt form over substance to require a copy of the judgment shown in the minutes of the very court in which profert thereof was made. In our opinion the trial judge properly considered the judgment in the cause as part of the record in passing on the motion for summary judgment.

A judgment is the sentence of the law on the facts in the record. Allen West Commission Co. v. Gibson, Tex.Civ.App., 228 S.W. 342. In case of a summary judgment it is still the sentence of the law on the facts in the record, such facts being un-controvertibly established. If such is not the case, a summary judgment cannot be rendered under the very terms of the law authorizing the same. Subdivision (c) of Rule 166-a, Rules of Civil Procedure, provides: “The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

It is not required that the motion be verified. The facts stated in the unverified motion are in no way evidenced or established thereby. In this case the judgment was entered on the record. The record consists of the pleading of the parties; it is considered that the judgment in cause No. 2525, that is, the foreclosure suit, was part of the record herein in that it was by reference adopted and made part of plaintiffs’ petition. The various other instruments filed to show common source are not considered part of the record therein, this by virtue of Rule 798. If plaintiff offers them for the limited purpose of showing common source, defendant cannot take advantage of same as showing or establishing his title. The record herein consists of the pleadings of the parties and the judgment in cause No. 2525.

If these fail to show that plaintiff had title to the land, then summary judgment was properly entered for the defendant. In this case, as it is our duty to determine the correctness of the court’s action in rendering summary judgment, we must look to the record alone. The motion here is analogous to a general demurrer. Rule 783 provides the requisite for petition in trespass to try title. Tested by this Rule it would seem that the petition states a cause of action for the premises sued for. The description of the premises is perhaps not in strict accord with the rule. In the absence of special exception the description is deemed sufficient. The only thing that in any way tends to show as a matter of law that plaintiffs are without title to the premises sued for is the judgment in cause No. 2525. This judgment we have held was by reference incorporated in plaintiff’s petition. Unless this judgment shows that the judgment in its execution terminated the title of plaintiffs, then the summary judgment should not have been rendered.

Unless the three deeds in which he is grantee, filed for the purpose of showing common source of title, constitute part of the record in this case the record fails to show that the land- described in plaintiff’s petition herein is the same as the lands described in the judgment in cause No. 2525. It is true plaintiff in his petition charges that the description is so vague and indefinite in the judgment that no land is described. Even though some land is described in the judgment, that does not establish or tend to establish that it is the same land sued for herein.

It must be that one seeking a summary judgment has the burden of establishing that there is no controversy as to facts and that all that is involved is the application of the law to facts that are established as such as a matter of law. 41 Am.Jur. p. 526, Sec. 343; Parmelee v. Chicago Eye Shield Co., 8 Cir., 157 F.2d 582, 168 A.L.R. 1130. It is said in the case of Walling v. Fairmont Creamery Co., 8 Cir., 139 F.2d 318, 322: “On a motion for a summary judgment the burden of establishing the nonexistence of any genuine issue of fact is upon the moving party, all doubts are resolved against him * *

The real and substantial contention of defendant was that the judgment and its execution extinguished any and all title that plaintiffs claimed in and to the lands in controversy. The record proper, in our opinion, fails to show as a matter of law that the land described by reference in plaintiffs’ petition was the same land upon which the defendant foreclosed his deed of trust liens and bought in at the foreclosure sale.

It is ordered that the judgment of the trial court be reversed and the case remanded for trial.