Johnson v. Marti , 1919 Tex. App. LEXIS 973 ( 1919 )

CONNER, C. J.

Appellant, in the usual, form of trespass to try title, instituted this suit against Jost Marti and others to recover certain lands described in his petition, situated in Tarrant county. Upon the conclusion of the evidence the court gave a peremptory instruction in favor of the defendants, and from the judgment following the verdict the plaintiff has appealed. .

The evidence, while somewhat complicated is substantially undisputed. It shows that the land in controversy in 1908 was owned by one Fifer Newton who, on July 1st of that year, executed a trust deed conveying the land to Horace H. Cobb, trustee, to secure a debt due the Belcher Land & Mortgage Company. On the 7th day of March, 1916, H. B. Church, as substitute trustee, acting by virtue of the trust deed above mentioned sold said land' to E. G. Gassoway. Thereafter, on January 11, 1917, Gassoway sold the land to G. W. Poulter, who in.turn on the next day, to wit, January 12, 1917, sold to appellee Jost Marti. This may be said to be the title under which the appellee Marti holds.

The title of appellant originated in this way: Fifer Newton, on November 14, 1912, conveyed the land, to J. W. Mays, who on the 20th day of March, 1914, conveyed to Mrs. Miller. The title thus emanating from J. W. Mays to Mrs. Miller passed out of her under an execution sale in favor of a Mrs. Ferguson on the 4th day of June, 1917; the appellant being at this execution sale the purchaser. Appellant, Johnson, also claimed under one John L. Poulter, whose title, if any, arose as follows: After the sale to Mrs. Miller, J. W. Mays, on October 4, 1914, deeded the land to one W. E. Poulter, a brother of J. L. Poulter. John L. Poulter testified to the effect that this conveyance from J. W. Mays to W. E. Poulter was in fact for his benefit, and that pursuant to the trust relation, W. E. Poulter, at a time not definitely fixed in the evidence, but which was at some date between October 4, 1914, and September 18, 1916, deeded the land to John L. Poulter. John L. Poulter, on the 18th day of September, 1916, deeded the land to G. W. Poulter. The deeds from W. E. Poulter to John L. Poulter and from John L. Poulter to G. W. Poulter were never recorded. All other conveyances named above were duly recorded at or near the time of their execution. John L. Poulter further testified that while the title from Mays was in him, to wit, at the time the substitute trustee advertised the lands in controversy for sale under the trust deed by Newton, he, Poulter, approached Gassoway for the purpose of procuring the money necessary to pay the debt for which the land was to be sold, and that it was finally-agreed that Gassoway would advance the money and buy the land in his name, to be later conveyed by Gassoway to John L. Poulter upon the payment of the money so advanced. The evidence shows that a written agreement of this character was entered into between Gassoway and John L. Poul-ter at and prior to the substitute trustee sale above mentioned. The evidence further shows that the West Publishing Company, on the 8th day of December, 1915, recovered a judgment against John D. Poul-ter in a justice court for about the sum of $41.96. This judgment was duly recorded and abstracted on the 8th day of January, 1916, in the judgment lien records of Tar-rant county. Later, to wit, on May 1, 1917, under the judgment last mentioned, the land was sold at constable’s sale, appellant becoming the purchaser. It further appears that after John L. Poulter conveyed to G. W. Poulter, as hereinabove stated, G. W. Poulter instituted a suit in the district court of Tarrant county against said Gassoway to recover the land in controversy, setting up in said suit the agreement made between Gassoway and John L. Poulter, and claiming title by virtue thereof and by virtue of the deed from John L. Poulter to him, G. W. Poulter.

A lis pendens notice of this suit was duly filed for record on September 23, 1916, and recorded the same day in the lis pendens records of Tarrant county. This suit was disposed of or “settled” as shown by the verbal testimony relating to that subject, on the llth day of January, 1917, by Gassoway executing and delivering the conveyance hereinbefore mentioned.

[1,2] A close analysis of the foregoing statement of facts will show, we think, that appellant’s claim of title can only rest on either the title proceeding from J. W. Mays to Mrs. Miller or to the title, if any, acquired under the sale by virtue of the judgment in favor of the West Publishing Company. Counsel for appellant concedes that the sale by the substitute trustee, if valid, extinguished whatever title J. W. Mays passed to Mrs. Miller, and the only attack made upon the substitute trustee’s sale is the suggestion that it was not shown that the substitute trustee had been duly appointed in lieu of H. H. Cobb, the original trustee. But this suggestion, we think, must be overruled, in view of the fact that the burden of proof was upon the plaintiff in this suit, and the statement of facts fails to show any defect of the kind suggested. Neither the original trust deed to H. H. Cobb nor the deed by the substitute trustee to Gassoway appears in the statement of facts. As to these instruments the statement of facts merely recites that the plaintiff offered in evidence “deed of trust of Fifer Newton and wife, Icy Newton, to Horace H. Cóbb, trustee, * * * fixing a lien on the real estate in controversy in this suit,” etc., and the “plaintiff offered in evidence deed by H. B. Church, substitute trustee to E. G. Gassoway, * ⅜ * conveying the land; in controversy in this suit.” In the absence of any intimation in the evidence that the original trust deed was insufficient, or that Church was not duly appointed and authorized to make the sale, we think we must find that the original trust deed “fixed” a lien on the land in controversy, and that H. B. Church was “substitute trustee,” and, if he was, his appointment in no wise questioned in the statement of fact must be assumed to have been legal; otherwise he could not be, in fact, a substitute trustee and have “conveyed the land.” As recited in this connection it is to be remembered that as presented to us it appears that the trial court had the original trust deed' and the substitute trustee’s deed to Gassoway before him, and must have concluded from an inspection of them that the trust deed authorized an appointment of a substitute trustee, and that recitations in the substitute trustee’s deed of the failure of the original trustee to act and of the proper request for him to sell the land and of the proper advertisement of the sale under the terms of the trust deed, and of other prerequisites to an exercise of his power, all constituted, at least, prima pacie proof of the regularity and validity of the substitute trustee’s sale. See McCreary v. Reliance Lumber. Co., 16 Tex. Civ. App. 45, 41 S. W. 485, holding in effect, that when authorized by the trust deed the recitals in the trustee’s conveyance to a purchaser constitute prima facie evidence of .his power to sell. Indeed, appellant seems to place but little stress upon his claim of title under the deed to Mrs. Miller, and we conclude that appellant in fact showed no title whatever by virtue of the execution sale in Mrs. Ferguson’s favor against Mrs. Miller.

[3] Nor do we think the record shows any title in appellant by virtue of the proceedings relating to John L. Poulter. J. W. Mays had no title in him to transmit at the time he made conveyance to W. E. Poulter in trust for John L. Poulter, for he had theretofore already conveyed to Sirs. Miller all the title acquired by him from Eifer Newton, and W. E. Poulter’s deed therefore to John L. Poulter conveyed nothing. By virtue thereof, however, he seems to have asserted title, and, as stated, arranged with Gasso-way to buy - in the land at the substitute trustee’s sale. Assuming that John L. Poul-ter acquired any right or equity by virtue of this agreement, it ,was certainly dependent upon John L. Poulter’s agreement to refund to Gassoway the money expended in the purchase. The evidence shows without dispute that_John L. Poulter never did this. What title then, either legal or equitable, to the land in controversy existed in John L. Poulter, upon which the abstracted judgment of the West Publishing Company could operate? It is only upon the “real estate situated in the county” where an abstract of judgment is recorded that a lien is created. See Vernon’s Sayles’ Civil Statutes, art. 5016. Unless, therefore, a consideration of other facts in the record require a different conclusion, it seems perfectly clear that John L. Poulter owned nothing except possibly a mere equity upon which the abstracted judgment could operate. See Hoffman v. Buchanan, 57 Tex. Civ. App. 308, 123 S. W. 108.

[4, 5] But what effect, if any, must be given to the conveyance by John L. Poulter to G. W. Poulter and the proceedings in the suit of the latter against Gassoway? It is evident that John L. Poulter in his transfer to G. W. Poulter at most only conveyed an equity that he (John L. Poul-ter) had under the trust agreement with Gassoway. John L. Poulter testified that while he had not paid Gassoway the money he was to pay under his alleged trust agreement that, nevertheless, Gassoway had from time to time extended the period of payment, and it may, therefore, be said that John B. Poulter conveyed to G. W. Poul-ter an equity that .was enforceable by the latter against Gassoway. But assuming this to be true, we do not see our way clear, as against the trial court’s ruling, to say that appellee, Jost Marti, is to be bound by the proceedings referred to. I-t is undisputed, as already noted, that the deed from W. E. Poulter to John L. Poulter and from John L. Poulter to G. W. Poulter were both unrecorded, and appellee Marti testified without contradiction that hq knew nothing of them. Appellant, however, insists that ap-pellee had notice both because of the lis pendens notice and because he claimed through the John L. Poulter title, but as against this contention it must be said that the lis pendens notice was in the name of G. W. Poulter and not John E. Poulter. The lis pendens notice also did not contain any recital referring to a transfer or a right of John E. Poulter. Moreover, so far as appears from the testimony, the suit of G. W. Poul-ter against Gassoway was settled, and therefore presumably ended on the 11th day of January, 1917, the day before appellee pur* chased of G. W. Poulter, which was on January 12, 1917. Whatever effect be given to the lis pendens notice, it ended with the termination of the suit by G. W. Poulter against Gassoway. See Roseborough v. Cook, 10S Tex. 364, 194 S. W. 131. So that it cannot be said, we think, that Marti had constructive notice of the equity, if any, in John E. Poulter, or that the abstracted judgment at any time ever operated upon the land in controversy in this suit.

[6] Appellant, however, further contends that Marti claims through the John L. Poul-ter title, and therefore was affected with constructive notice of the recitals in the several deeds from W. E. Poulter to John E. Poulter and from John E. Poulter to G. W. Poulter. But we fail to' see how an investigation of this title, had one been made, would have developed any serious hesitancy, for the reason that the record of deed from- G. W. Mays to Mrs. Miller would most naturally have brought an intended purchaser to the conclusion that John L. Poulter acquired no title to the land. But it cannot be said, we think, that appel-lee Marti claimed through what may be termed the John L. Poulter title. It is true John L. Poulter had made a deed to G. W. Boulter from whom Marti' purchased, but this deed, as heretofore stated several times, was not of record, nor was the deed from W. E. Poulter to John L. Poulter of record. The record only disclosed that G. W. Poulter acquired his title from the substitute trustee Church, and that Church was empowered to convey title by virtue of the terms of the original trust deed executed by Newton long prior to any attempted acquisition of title by J. W. Mays, through whom’ alone John E. Poulter claimed.

We conclude that all assignments of error must be overruled, and the judgment affirmed.

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