Easterwood v. Rash , 46 S.W.2d 1118 ( 1932 )

LOONEY, J.

This is an action of trespass to try title by John W. Easterwood and wife, Prances Easterwood, against H. L. Rash, to recover the title and possession of 100 acres of land situated in Henderson county. Defendant’s answer contained a plea of not guilty and allegations to the effect that the trustee’s deed, under which plaintiffs asserted title, was void because it resulted from a sale of the land under a trust deed, to pay an interest installment note given on a usurious contract. On trial before the court without a jury, the special defense pleaded was sustained, and judgment resulted that plaintiffs take nothing, and that the trustee’s deed under which they claimed title be removed as a cloud from the title of defendants. Plaintiffs excepted and perfected appeal to this court, but neither party briefed the case, nor was a motion made to dismiss the appeal, but, on submission, an attorney representing appellee was present in court and asked that the case be affirmed on the record.

We have examined the record for fundamental error, that being the only question we are called upon to consider, and, finding that the judgment could have been legally rendered and no error of law appearing, the case is affirmed on the following authorities: Halbert v. Toyah Valley Bank (Tex. Civ. App.) 175 S. W. 508; Burkhalter v. Webb (Tex. Civ. App.) 209 S. W. 216; Spark v. Lasater (Tex. Civ. App.) 234 S. W. 1108.

Affirmed.