Howe v. Central State Bank of Coleman , 13 S.W.2d 437 ( 1929 )

By this suit appellee, Central State Bank of Coleman, sued appellant Mrs. S.E. Howe and her son, appellant Oscar Howe, in trespass to try title to recover certain lands in Coleman county. Appellee caused a writ of sequestration to issue, and under same obtained possession of the lands upon appellants' failure to replevy. Appellants filed a cross-action for damages for alleged wrongful issuance of the writ of sequestration. Just prior to the filing of this suit, appellant Mrs. S.E. Howe had, in the same court, filed a suit against her son, appellant Oscar Howe, seeking to foreclose an alleged vendor's lien on the same lands here involved, in satisfaction of some notes alleged to have been executed by the son to her, and appellee bank was made a party defendant to that suit upon the allegation that it was a subsequent or junior lienholder. Appellee bank answered by way of crossaction in that suit, alleging that it had sold the lands involved under provision of a deed of trust given to secure certain notes executed by said Oscar Howe to it; that it purchased the lands at the trustee's sale, and then filed this trespass to try title suit, caused a writ of sequestration to issue, and obtained possession thereunder, and prayed that it be quieted in its title, and possession of the lands. On a trial of that suit, appellee obtained judgment for title and possession of the lands involved here, from which judgment appellants Mrs. S.E. Howe and Oscar Howe appealed to this court, and the judgment was here affirmed. See Howe et al. v. Central State Bank of Coleman, 297 S.W. 692 (writ of error refused). Now after the affirmance of that judgment appellants sought a trial on their cross-action for damages filed in this appellee's trespass to try title suit against them, and, after hearing the evidence, the trial court sustained appellee's special plea that the judgment in the case of Howe et al. v. Central State Bank, supra, was res adjudicata of all matters and things asserted by appellants in this suit, and thereupon directed a verdict for appellee bank for title and possession of the lands, and also that appellants take nothing by their cross-action for damages for alleged wrongful issuance of the writ of sequestration, and rendered judgment in accordance with these instructed findings. This appeal is from the judgment so rendered. We sustain the action of the trial court.

The law is well settled that, where the owner has been awarded title and possession of lands as against defendants to the suit, such judgment is conclusive and res adjudicata to the right of such defendants to recover damages from the owner for taking possession under sequestration proceedings. The following authorities sustain the action of the trial court: Flippen v. Dixon, 83 Tex. 421, 18 S.W. 803, 29 Am. St. Rep. 653; Hermann v. Allen, 103 Tex. 382, 128 S.W. 115; Nichols v. Dibrell,61 Tex. 539; Hanrick v. Gurley, 93 Tex. 458, 54 S.W. 347, 55 S.W. 119,56 S.W. 330; Howe v. Central State Bank (Tex.Civ.App.) 297 S.W. 692.

The trial court's judgment is affirmed.

Affirmed.