Edwards v. Riverside Royalties Corp.

HIGGINS, Justice

(after stating the case as above).

Appellant first contends the equitable remedy here invoked by appellee was not available to it. The position taken in this connection is that appellee should have moved for new trial in cause No. 474 or resorted to the remedy of appeal or writ of error to review the judgment.

The appellee in its petition alleged it did not know of the rendition of the judgment against it until after the adjournment of the term, and the evidence so shows. We do not regard the filing of the motion to quash the service as controlling upon the question. The effect of such motion was to enter an appearance for appellee to the succeeding term of the court, but did not as a matter of law charge it with notice of the fact that a judgment had been previously rendered against it. Not knowing of the rendition of the judgment until after the adjournment of the July term, the appellee lost no rights by its failure to file motion for new trial before the expiration of the term.

The return upon the nonresident was regular and shows due service upon appellee. Extrinsic evidence was necessary to show White was not an officer or agent of appellee upon whom service might be had. The vice in the service would not have been shown by the record upon an appeal or writ of error to review the judgment in cause No. 474. Therefore, appeal or writ of error did not afford ap-pellee an adequate remedy. Gutierrez v. Cuellar (Tex.Civ.App.) 236 S.W. 497. We have considered the various theories advanced by appellant in support of his insistence that appeal or writ of error afforded an adequate remedy and regard same as untenable.

Appellant presents the further point that appellee failed to show a meritorious defense to the former suit. Edwards’ claim of title to the land is based upon a foreclosure sale under a deed of trust made by a substitute trustee.

Appellee claims an undivided mineral interest in certain of the parcels of land. This mineral interest was originally subject to the lien of the deed of trust, and it is contended by appellee the mineral interest claimed by him was released from the deed of trust lien. It is unnecessary to determine that issue for the trustee sale under which Edwards claims was in any event insufficient to pass title to the lands.

The deed of trust authorized the appointment of a; substitute trustee by the holders of the notes which the deed was given to secure. The trustee was authorized to sell upon request of such holders. The trustee was appointed by Edwards and the sale was made by such trustee at request of Edwards. The record shows Edwards did not own all of the notes which the deed of trust was given to secure. Under such circumstances, the substitute trustee acted ‘without authority, and the sale by him passed no title. Bomar v. West, 87 Tex. 299, 28 S.W. 519.

Finding no error, the judgment is affirmed.