Harris Realty Co. v. Austin

118 S.W.2d 491, 1938 Tex. App. LEXIS 1

• Court: Court of Appeals of Texas
• Decided: June 2, 1938
• Docket: No. 10638.
• Status: Published

Opinions

CODY, Justice.

Plaintiff in error brought suit in trespass to try title in the District Court of Harris County against D. H. Austin, defendant in error, for title to, and possession of, a certain lot in Houston. Defendant in error answered by general denial and the plea of not guilty; and by a cross-action sought to recover title to and possession of the same lot from plaintiff in error; to this cross-action plaintiff in error, by its original supplemental petition, plead a general denial, and not guilty. The case was tried without a jury, and resulted in a judgment for defendant in error on his cross-action. The Court filed conclusions of fact and law in response to plaintiff in error’s request.

One Albert J. Schuetze is the common source; he acquired the lot involved in January, 1926.

In December, 1928, a Dr. Thoma recovered judgment against Schuetze in the County Court at Law. This judgment was duly abstracted, recorded, and indexed, March 4, 1929, in the judgment records of Harris County. On April 26, 1934, Dr. Thoma had an alias execution levied on the lot here involved, which was sold thereunder at public auction on June 5, 1934, to defendant in error; and the sheriff’s deed to defendant in error was immediately filed for record.

On May 5, 1934, Fain-Townsend Company filed a suit for foreclosure of a paving lien on the lot here involved against Schuetze, the common source, and his wife, in the District Court of ’Harris County; and on May 9, 1934, it duly filed a lis pendens. Neither Dr. Thoma, plaintiff in judgment in the county court case, nor defendant in error, purchaser at the sheriff’s sale aforesaid, were made a party to this district court suit; nor did either of them intervene in such suit. On June 14, 1935, judgment for foreclosure was rendered against Schuetze and wife, in favor of Fain-Townsend Company, and thereafter an order of sale was issued, and the lot was regularly sold at judicial sale to the City Realty Company of Dallas, on December 3, 1935. On October 2, 1936, the last mentioned corporation duly conveyed the lot to plaintiff in error.

Neither the plaintiff in error nor the defendant in error has ever been in actual possession of the lot.

On the trial of this case, when plaintiff in error offered in evidence the judgment of foreclosure obtained by the Fain-Townsend Company, which, according to its recitals purported to foreclose a paving lien, defendant in error objected to its admis sion on the ground that such judgment was not binding on him, as neither he, nor Dr. Thoma, was a party to the suit in which such judgment obtained; and, so with respect to the execution and order of sale, and with respect to the lis pendens notice, and with respect to the sheriff’s deed to the City Realty Company of Dallas, and with respect to its deed to plaintiff in error. The Court, however, received such instruments in evidence, subject to the objection.

The discussion of the law of this case need not detain us long. In rendering judgment for defendant in error, the court concluded that neither he nor his predecessor in interest, Dr. Thoma, were purchasers from Schuetze (the common source), pendente lite; and that therefore the recitals in the Fain-Townsend Company judgment, which, if true, established the existence of a paving lien on the lot involved as of May 17, 1929, were not binding on, nor admissible against, defendant in error. This ruling was correct. Baker v. West, 120 Tex. 113, 36 S.W.2d 69S. From and after the date that Dr. Thoma’s judgment lien was perfected against the lot, which, as is above indicated, was on March 4, 1929, Schuetze’s interest in the lot — considered from a practical viewpoint —consisted of the right to pay off and discharge the judgment lien. What we are trying to emphasize is the fact that, from and after the perfection of his judgment lien, Dr. Thoma had a substantial interest in the lot, and in order to subject such interest to a foreclosure of the paving lien, it was necessary to make Dr. Thoma or his successor in interest a party to the suit brought to foreclose such paving lien. As that interest was not represented in such suit, it remained unaffected by the judgment foreclosing the paving lien. Baker v. West, supra. Therefore, as the only evidence offered in the case at bar tending to establish the existence of a paving lien against the lot consisted of recitals' contained in the judgment of foreclosure, and contained in the instruments based on such judgment, and as these recitals, at the objection of defendant in error when, the instruments were offered in evidence, were correctly excluded, there is no competent evidence in .the record before us that any paving lien ever existed against the lot, or was foreclosed, or that plaintiff in error’s predecessor bought in the property at the sale foreclosing a paving lien. In this state of the record the court correctly rendered judgment for defendant in error.

We have carefully refrained from discussing the interesting questions suggested by, but not raised in, the record before us. What has been said disposes of plaintiff in error’s assignments.

Judgment of the trial court affirmed.

PLEASANTS, C. J., absent.