Finke v. Wheatfall

565 S.W.2d 386, 1978 Tex. App. LEXIS 3206
CourtCourt of Appeals of Texas
DecidedApril 26, 1978
DocketNo. 1647
StatusPublished
Cited by1 cases

This text of 565 S.W.2d 386 (Finke v. Wheatfall) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Finke v. Wheatfall, 565 S.W.2d 386, 1978 Tex. App. LEXIS 3206 (Tex. Ct. App. 1978).

Opinion

J. CURTISS BROWN, Chief Justice.

Mary Valentine and the collateral heirs of Dan Gaston filed a petition to partition the Dan Gaston 50-aere tract of land in Waller County, Texas. Valentine alleged that she was the owner of an undivided one-half interest in the tract as the devisee under the will of one Pearlie Steptoe Gaston. Certain alleged collateral heirs of Dan Ga-ston claimed ownership in the other one-half by virtue of the statute of descent and distribution. Writ of partition was issued, a receiver was appointed, and the property was sold to Albin Finke (appellant) in December 1974. On March 20,1975, the appel-lees filed their motion for new trial to set aside the judgment based on citation by publication under provisions of Rule 329 and a cross-action in the nature of trespass to try title.

Following a non jury trial, judgment was rendered setting aside the granting of the writ of partition, the receiver’s deed pursuant thereto, and the report, sale and order confirming the sale insofar as they affected the interest awarded to appellees. The judgment was in favor of the appellees as against the defendants in the trespass to try title action who defaulted. Judgment was also rendered granting the appellees an undivided one-half interest in the property being the community interest of one Mary Jane Young Gaston.

In due course, the trial court made the following findings of fact in the cause submitted to it: Dan Gaston and Mary Jane Young were married ceremonially in Waller County, Texas on December 18,1917. Mary Jane Young Gaston had one child, Elizabeth Gaston, who was born on February 2, 1910. Following their marriage, Dan and Mary Jane Gaston had no other children. During the marriage, Dan and Mary Jane purchased the 50-acre tract of land in question from Fritz Horn (Horn) by general warranty deed with vendor’s lien dated January 30, 1919. The marriage continued until the death of Mary Jane in 1942. The grantor of the land released the vendor’s lien on the realty described and quitclaimed to Dan Gaston by release and deed dated November 1, 1924. From January 30, 1919 until October 3, 1942, Dan and Mary Jane lived and resided on the 50-acre tract that had been conveyed to them by Horn. Elizabeth Gaston, the daughter of Mary Jane Gaston, had five children. The appellees are the children of Elizabeth Gaston, along with the five children of her daughter Adelle Robinson, who died intestate. Dan Gaston, the surviving spouse of Mary Jane Gaston, married Pearlie Steptoe. After 1943, Dan Ga-ston and his new wife did not live on the land and it was never their residence. On August 1,1969, an affidavit of heirship was [388]*388filed in the deed records of Waller County asserting a claim of ownership in the property on behalf of the appellees, who are the direct descendants of Mary Jane Gaston, the first wife of Dan Gaston. In 1971, the appellant met with the appellees and offered to purchase the 50-acre tract from the appellees, but no trade was consummated. On January 6,1973, Pearlie Steptoe Gaston, the second wife and surviving widow of Dan Gaston, died testate leaving her estate to Mary Valentine. The appellant then entered into negotiations in which he sought to acquire the property through Mary Valentine. Pursuant to this effort, an heirship proceeding for Dan Gaston was instituted in the County Court of Waller County. No service of citation was made or attempted in said heirship proceeding on the appellees, and none of them had any notice of such proceeding. In February 1973, the appellant employed and delegated to the Hemp-stead Abstract Company and his attorney and agent Claude Lilly the responsibility for determining the title to the 50-acre tract in question. At all times after February 1973, these agents of Finke possessed, and had actual knowledge of, the affidavit of heirship filed by the appellees. Those agents also had actual knowledge that ad valorem taxes on this tract had been continuously paid by one of the appellees. No service of citation in the partition suit had been had upon the appellees, nor did any of them have any notice of any kind of the proceeding until after the order of partition and sale.

On November 30,1974, a writ of partition was issued by the district court of Waller County, Texas. The court found, in substance, that no partition in kind was possible and ordered a receiver to be appointed to sell the real estate described as:

50.174 acre tract of land situated in W. E. Baker Survey, Abstract No. 70, Waller County, Texas. Said 50.174 acre tract ■ being called a 50 acre tract of land in deed dated January 30, 1919, from Fritz Horn to Dan Gaston recorded in Vol. 77, Page 323 of the Deed Records of Waller County Texas. Said 50.174 acre tract being described as follows: Beginning at 1¼ inch iron pipe at fence corner for S.E. corner of this tract at North side of Courtney Public Rd. as road turns South. Said corner being in East line of W. E. Baker Survey and West line of W. J. White Survey. Said corner bears North 2049.0 feet from recognized Southwest corner of the Dudley J. White Survey and Southwest corner of the Frederick estate. Thence South 89° 6" W. along North line of Courtney Public Rd. 1521.60 feet to iron rod found for Southeast corner of the Meineke 50.89 acre tract of land. Thence N 1° 23' W. along a marked cut line of old fence line 1424.73 feet to iron rod found for Northeast corner of said Meineke tract and Northwest corner of this tract. Thence N 89° 25' 5" E. along a cut and marked line along old fence line 1555.89 feet to iron axle for Northeast corner of this tract in West line of Frederick estate tract. Thence South along cut and marked line along fence line 1416.22 feet to point of beginning. Containing 50.174 acres of land with [encroachment] of 0.067 acre on the East line of this tract and 0.139 acre on North side of this tract leaving a fenced acre of 49.968 acres of land as surveyed by W. D. Kennedy, Registered Surveyor No. 511, December 12, 1974.

On December 17,1974, the receiver sold the tract of land in question to the appellant. At that time, less than 30 days had passed since the entry of the order of partition on November 30, 1974. The appellant had actual knowledge of the appellees’ claim to the land in question at all relevant times. The heirship proceeding in the estate of Dan Gaston did not describe the tract of land originally conveyed to Dan Gaston and Mary Jane Gaston by the deed from Horn. The petition to partition was similarly deficient. The appellees first had knowledge of the proceedings in the partition suit about January 31, 1975, and thereafter filed a motion for new trial and a trespass to try title suit. This motion and suit were filed less than two years after the signing of the writ of partition on November 30, 1974. The trial court further found that certain [389]*389named defendants had been duly served with citation in the trespass to try title suit and had wholly failed to appear and answer. A motion for default judgment which had been made by the appellees with respect to these defendants was granted.

Appellant has duly perfected his appeal and assigns nine points of error.

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Related

Finke v. Wheatfall
581 S.W.2d 152 (Texas Supreme Court, 1979)

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Bluebook (online)
565 S.W.2d 386, 1978 Tex. App. LEXIS 3206, Counsel Stack Legal Research, https://law.counselstack.com/opinion/finke-v-wheatfall-texapp-1978.