Davis v. Jones (149 S.W. 727, 1912)

GRAHAM, C. J.

This is an appeal by defendants below from a judgment rendered by the district court of Hardeman county, in favor of plaintiff below, foreclosing a lien on certain lands in Hardeman county claimed by appellants.

The record shows that appellee herein filed suit in the district court of Hardeman county on December 8, 1910, against appellants to foreclose an alleged lien on the property hereinafter described for the payment of a judgment which appellee had recovered years before against one H. C. Davis, deceased, alleging substantially the recovery by appellee of the judgment against H. 0. Davis and R. E. Richmond on July 3, 1901, in the county court of Childress county, Tex., in cause No. 61 on the civil docket of said court for the sum of $464.60; allegation was made of due and legal filing, recording, and indexing of an abstract of said judgment in Hardeman county about July 3, 1901, whereby a lien was fixed on the lands in controversy; allegation was also made of the issuance of an execution on said judgment on July 22, 1901, which was duly and legally returned, thereby keeping said judgment alive under the law for 10 years from that date. Allegation was then made of the death of H. C. Davis and that all the defendants held and claimed as heirs, devisees, or distrib-utees of H. C. Davis, who it is alleged actually owned the lands at the time of the abstracting of said judgment and at all times thereafter.

That on October 8, 1904, in cause No. 627, istyled Thomas Jones v. Minnie Humphreys, on the docket of the district court of Harde-man county, judgment was rendered canceling and annulling plaintiff’s alleged judgment lien; allegation being made that said last-mentioned judgment was based on false and perjured testimony of H. C. Davis, his wife, Mary B. Davis, and Minnie Humph-reys, to the effect that the lands in controversy were owned exclusively by Minnie Humphreys, and H. C. Davis did not own them or any interest in them when the abstract of judgment was filed, recorded, and indexed, or at any time thereafter; allegation is then made that in truth and in fact the real, equitable and beneficial ownership of the said lands had at all times been in I-I. C. Davis as his separate property or in H. C. Davis and his wife, Mary B. Davis, as their community property. Allegation is then made that thereafter H. O. Davis having died intestate, in cause No. 764 on the docket of the district court of Hardeman county, styled Mary B. Davis v. Willis A. Jones et al. (said Willis A. Jones having in the meantime married Minnie Humph-reys), judgment was rendered parceling and dividing the lands in controversy among defendants in this suit, and that all such rights as were awarded all the parties defendant herein in said last-mentioned judgment were as heirs, legatees, and distributors under H. C. Davis, then deceased. Allegation is then made of the indebtedness of said H. G. Davis to appellee on the judgment in said cause No. 61 at the time of the death of H. O. Davis, the absence of any. administration on his estate, and allegation is made that Davis died seised and possessed of the beneficial interest in the lands, and allegation is made of possession of the lands by appellants as heirs, legatees, and distributors under said H. O; Davis, deceased. A want of any legal division of said lands among defendants was then alleged, and a lien was alleged on all the lands to secure the payment of plaintiff’s debt. Prayer is then made to cancel and set aside the judgment rendered in cause No. 627, and for a foreclosure of appellee’s lien on all the said lands as against each and all of the appellants.

Appellants answered by a general demurrer and special exceptions, a general denial, a special denial that they or either of them held or claimed under H. O. Davis, and then alleged that they held and claimed under Minnie Humphreys, pleaded the statute of limitation of four years, and appellants Clarke and Decker pleaded that they were innocent purchasers of the interest claimed by them in said lands.

By supplemental petition filed on March 9, 1911, appellee alleged in substance, in avoidance of the statutes of limitations pleaded by appellants, that through the fraud of appellants and those through whom they claimed, the facts entitling appellee to have the judgment in cause No. 627 set aside, had been concealed from him until said facts, were finally developed and disclosed in the disposition of cause No. 764 herein mentioned, and that through no fault of his he failed to make such discovery earlier. By trial amendment, appellants pleaded tile judgment In cause No. 627 in estoppel and in bar of appellee’s alleged right to a judgment lien on the land.

The cause was tried below before the court without the intervention of a jury, and the following judgment was rendered:

“On this the 10th day of March, 1911, came on this cause for trial, and came all the parties plaintiff and defendants and in open court announce ready for trial, and the court; having heard and determined the general demurrers of the said several defendants, finds the law against said demurrers, and the same are in all things overruled; and thereupon the cause was duly called for trial, and all matters of fact as well as of law being submitted to the court, and the court having heard the pleadings of the several parties and the evidence adduced thereunder in support thereof, considers that the plaintiff, Thos. Jones, ought to recover on his said pleas, and that he ought to have a foreclosure of his lien upon the following lands situate in Hardeman county, Tex., all of section No. 240, block H, Waco & Northwestern Railway Company survey, except the southeast one-fourth of said survey, and the south one-half of the northeast one-fourth of said survey, which said debt is here found to be in the sum of $515.

“It is therefore ordered, considered, adjudged, and decreed by the court that the plaintiff, Thos. Jones, has a lien upon all of said section No. 240, block H, Waco & Northwestern Railway Company surveys in Hardeman county, Tex., except all of the southeast one-fourth thereof, and the south one-half of the northeast one-fourth thereof; the said lien being the judgment lien and now amounting to the said sum of $515, and the same is now here in all things foreclosed against the said several defendants, Mary B. Davis, Lucile Davis, Tina Davis, Nance Davis, Minnie Davis, D. E. Decker, J. A. Clarke, B. Whittington, and husband, E. E. Whittington, M. M. Franklin, and husband, B. H. Franklin, and H. Roy Davis, and the same is declared to be a superior and prior lien to any right, title, or interest in and to said lands held by any of said defendants aforesaid, and that the said judgment herein shall draw interest at the rate of 10 per cent, per annum from this date, that he have his writ of execution and order of sale commanding the sheriff of this Hardeman county, Tex., to seize upon and sell said lands as is provided by law, and apply the same to the payment of said judgment and in satisfaction of said lien aforesaid, but that, in the event that said lands shall not bring enough to pay off and discharge said judgment lien, then and in that event no other or further execution shall issue against the said defendants; they not being personally liable.

“It is the further order, judgment, and decree of the court that the plaintiff, Thos. Jones, has a lien upon the aforesaid property by virtue of being a creditor of the estate of H. C. Davis, now deceased, in the sum of $515, the said sum being the judgment aforesaid, and as such creditor he has a lien upon all of the section No. 240, block H, Waco & Northwestern Railway Company, Hardeman county, Tex., except the southeast one-fourth and the south one-half of the northeast one-fourth, and that the defendants hereto hold as follows: D. E. Decker and J. A. Clarke each one-sixth thereof, Mary B. Davis one-third thereof, and that Bueile Davis, Tina Davis, Nance Davis, Minnie Davis, B. Whittington, M. M. Franklin, and H. Roy Davis each one twenty-first thereof, and the same is in all things hereby foreclosed against the respective interests of the said defendants herein, and the clerk of this court is directed to issue his order of sale as is in all things authorized by law, commanding the sheriff of this Hardeman county, Tex., to sell said lands and to make the said above-mentioned sum of money thereout so that each defendant shall pay only his proportionate part of the aforesaid judgment as his interest therein bears to the whole amount of the estate, together with such costs in that behalf incurred, but that, in case said sum of money shall not be made out of the said estate, then no execution shall issue for any deficiency thereon.

“It is further ordered that the plaintiff have and recover of and from the defendants his costs in this behalf expended, and that the said defendants D. E. Decker and J. A. Clarke each take nothing by their plea of innocent purchaser as against the plaintiff Thos. Jones, and that such interest be held inferior to the lien of said Thos. Jones, and it is so ordered.

“That said several defendants then and there in open court excepted to the judgment of the court in overruling the general demurrers, and to the order and judgment of the court in foreclosing the said liens and judgment, and gave notice of appeal to the Court of Civil Appeals of the Second Supreme Judicial District of Texas, sitting at Ft. Worth, Tex., and is hereby given 30 days from and after the adjournment of this court in which to prepare and file bills of exceptions and statement of facts.”

From which all of the defendants below have prosecuted a joint appeal to this court.

There are both statement of facts and findings of fact and conclusions of law of the trial court on file, in this cause, but the record fails to show that the findings of fact and conclusions of law filed by the trial court was prepared and filed at the request or instance of either appellant or appellee.

As the disposition we shall make of this appeal will be largely based on the findings of fact and conclusions of law filed by the trial court, we copy same herein, as follows:

Conclusions of Law and Fact.

“A jury being waived and tbe cause being ¡submitted to tbe court, I find as follows: In cause No. 91 of the county court of Chil-■dress county, Tex., Tbos. Jones, plaintiff herein, recovered judgment in tbe sum of $464.60 against H. O. Davis and R. E. Richmond, together with interest thereon from the date thereof, to wit, July 2, 1901, at the rate of 10 per cent, per annum and all costs of suit.

“(2) I find that Thos. Jones did on the 3d day of July, 1901, procure an abstract of said judgment and filed the same with the clerk of the county court, Hardeman county, Tex., and that said clerk did on said date file and record the same as provided by law in volume 1, page 296, abstract of judgment records of said Hardeman county, Tex., and at the same time indexed the same showing the name of the plaintiff and each of the defendants in the direct and reverse as required by law so as to entitle him to a lien upon the property of defendants.

“(3) I find that on the 22d day of July, 1901, the plaintiff, Thos. Jones, in cause No. 91 in the county court of Childress county, Tex., caused an execution to be issued as required by law, and that it was duly returned into court indorsed “no property found,” and that afterwards on the 12th day of September, 1901, an alias execution was issued to Hardeman county, Tex., and was by the sheriff of said county executed by making a levy.

“(4) I find that said judgment in cause No. 91, county court of Childress county, Tex., has a balance still due of $515, being the amounts of the principal, interests, and costs of said suit as shown in the abstract of judgment and the executions containing certified copies of the cost bills, less credit of $291.95 of date June 4, 1904.

“(5) I find that Mary B. Davis is the wife of H. C. Davis, deceased: that Lucile Davis, Tina Davis, Nance Davis, Minnie Davis, B. Whittington, M. M. Franklin, and H. Roy Davis are the children of H. C. Davis, deceased, and said Mary B., his wife; that E. E. Whittington is the husband of B. Whit-tington; and that B. H. Franklin is the husband of M. M. Franklin; and that, as such wife, Mary B. Davis was entitled to one-half of the lands and the children the other half, the same being the community property of H. C. Davis, deceased, and his wife, Mary B. Davis. That D. E. Decker and J. A. Clarke are practicing attorneys of this court, and by representing plaintiff in cause No. 764 became entitled to one-third of the lands recovered therein.

“(6) I find that on the 16th day of October, 1909, Mary B. Davis, for herself and as next friend for her children above named, filed in cause No. 764 of the district court of Harde-man county, Tex., styled Mary B. Davis v. Willis A. Jones et al., her first amended original petition and in which she alleged that on the 23d day of December, 1907, Minnie Humphreys Jones, wife of Willis A. Jones, made, executed, and delivered to her four certain promissory notes, each in the sum of $1,500, due and payable on or before June 1, 1908, December 1, 1908, June 1, '1909, and December 1, 1909, and bearing interest from date at the rate of 10 per cent, per annum and 10 per cent, for attorney’s fees, etc., that at said date the said Mary B. Davis made, executed, and delivered her certain warranty deed to the said Minnie Humphreys, wherein and whereby she conveyed to the said Minnie Humphreys all of section No. 240, block H, Waco & Northwestern Railway Company survey, in Hardeman county, Tex. That part of the purchase money and consideration for said deed was the- four promissory notes above mentioned, and the same was specially stipulated in said deed, and a vendor’s lien was retained therein. She then alleged a default in the payment of the note due June 1, 1908, and her election to declare them due, the employment of attorneys to bring the suit, and asked for general relief, etc. She alleged that, since the execution of said notes, the defendant Minnie Humphreys had intermarried with her codefendant Willis A. Jones.

“In the second count of her petition, Mary B. Davis sued in trespass to try title alleging the title to be in her, the said Mary B. Davis.

“In a third count to her petition, the said Mary B. Davis alleged that on the 5th day of March, 1901, the land in controversy was conveyed by John Scarborough to H. C. Davis, the husband of plaintiff therein, upon a consideration of $3,500; the sum of $1,750 being paid in cash by the said H. C. Davis, and the said H. C. Davis executing his two certain promissory notes, each in the sum of $875 for the balance of said purchase money; that said money was derived by the said H. C. Davis selling lands belonging to said H. C. Davis in the state of Virginia; that said Davis, after selling the property in Virginia, paid his debts and brought with him to Texas the sum of about $5,000 in cash. That she objected to said Davis selling the lands in Virginia because he was addicted to drinking, and that he assured her that he would have plenty of money with which to pay his debts in Virginia, and that he would fix and secure the investments in Texas lands so that they could not be taken from her for the debts and liabilities of the said H. O. Davis, and that she, relying upon said promises and assurances, finally consented to the execution of the deed to their said home place in Virginia, but that she afterwards learned that the lands purchased by her said husband were not safe and secure from the claims and demands of the creditors -of her said husband, and that he might incumber and transfer the same with-out her consent and her Joining in a conveyance of the same; that upon their arrival in -Texas the said H. 0. Davis had bought the lands in controversy and above mentioned, and had taken the deed to the same in his name, and had executed the notes above referred to as a part of the purchase money, • and that her husband continued to drink and get on frequent and protracted sprees, and that she, fearing that he would squander what little property they had left, sought . advice about what course to pursue with reference to protecting herself and children • against the improvidence of her husband, -and was advised that it was the best to get the property out of the name of her husband, and was advised- that it was best to have said property transferred to some one ■else. That accordingly ■ it was on the 30th day of March, 1901, transferred to her and the defendant Minnie Humphreys. That he