Smith v. Moore , 42 Tex. Civ. App. 528 ( 1906 )

The plaintiff Knight Stith brought this suit against the defendants W. J. Moore, T. J. Moore, Charles Schreiner and Ben Collins. The suit was an action of trespass to try title and to cancel certain deeds, under which the defendants Schreiner and the Moores claim. There was a non-jury trial resulting in a judgment for the defendants, and the plaintiff has brought the case up by writ of error.

Disregarding the order in which the case is presented in this court, and treating it chronologically, we dispose first of the question relating to the plaintiff's application to have an attorney appointed to represent him in the court below. The minutes of the court fail to show, and there is no bill of exception showing, that the court was requested to or, in fact, did make any ruling upon the application. The trial court made an endorsement on the application to the effect that after hearing it read, he attempted to secure an attorney to represent the plaintiff, but was unable to do so, because all of the attorneys residing in Llano County were disqualified. When that endorsement was made is not shown, but the application itself is marked "filed December 5, 1904." The case was tried and judgment rendered August 26, 1904, several months before the application was filed. The judgment recites that both parties, the plaintiff and the defendants, by their respective attorneys, appeared at the trial; and the statement of facts is signed by Slator Oatman, attorneys for the plaintiff, and that firm, together with another attorney, is representing the plaintiff in this court. Therefore, the record showing affirmatively that the plaintiff was represented in the court below, we hold that no reversible error is shown in reference to the application to have an attorney appointed for the plaintiff.

The defendant Ben Collins was served by publication, and we are asked to reverse the judgment because no attorney was appointed to represent him, as required by statute. The failure to appoint an attorney to represent the defendant Collins did not affect the jurisdiction of the court, and therefore the plaintiff can not be heard to complain upon that ground. Such failure was an irregularity of which Collins alone could complain, but as the judgment is in his favor, he has no ground upon which to base a complaint, and the plaintiff is not entitled to have the judgment set aside because of the failure referred to. (Crosby v. Bannowsky,95 Tex. 449.)

No error was committed in not granting the plaintiff's application for a continuance. It was presented on June 14, 1904, and the case was postponed until August 26, 1904. All the witnesses referred to in the application appeared and testified except the defendant Ben Collins, and it was not shown that any further diligence was used to procure his testimony after the case was postponed. (Watson v. Blymer Mfg. Co., 66 Tex. 558; St. Louis Brewing Assn. v. Walker, 23 Texas Civ. App. 7[23 Tex. Civ. App. 7].)

Ben Collins conveyed the land in controversy in trust to Richard Wooley to be conveyed by the latter to the Bessemer-Llano Development Company, which was done. Thereafter the property of the development company was placed in the hands of a receiver by the District Court of Bexar County, and the land in controversy was sold by the receiver and bid in by the defendant W. J. Moore, who caused the deed to be made by the receiver to Charles Schreiner and the Llano Bank. The plaintiff objected to the deed from Collins to Wooley upon the ground that it did not sufficiently define the nature, purpose and conditions of the trust. It stated that the land was to be by Wooley, as trustee, sold and conveyed to the Bessemer-Llano Development Company for and in consideration of such amount of the full paid up non-assessable stock of said company as he may deem proper. We hold that this was a sufficient designation of the trust. In fact, the instrument referred to is a power of attorney authorizing Wooley to convey the land to the development company. The objection referred to is the only one that was made against its admissibility in the court below, and for that reason we decline to consider other objections urged in this court.

The deed from the receiver was objected to because the sale was made in Bexar County and not in Llano County, where the land is situated. This objection is without merit. Unlike execution sales, there is no statute requiring a receiver's sale to be made in the county where the land is situated; and it was within the discretion of the court in which the receivership was pending to permit the sale to be made in Bexar County. (Lewis v. Dennis, 54 Tex. 491; Farmers M. Nat. Bank v. Waco Elec. Ry. Co., 36 S.W. Rep., 135.) The other objection urged in this court against the deed referred to was not made in the court below, and for that reason it can not be urged here.

The plaintiff asserts title to the land by reason of a judgment in his favor against Ben Collins, and a sale of the land thereunder, at which sale he became the purchaser. That sale occurred September 2, 1902. Collins conveyed the land to Wooley as trustee March 2, 1893, and the receivership sale was made in 1899. Therefore the defendants having the older title, it became necessary to break down that title before the plaintiff could recover. This the plaintiff failed to do.

The point sought to be made upon the difference between the Llano Bank and the Llano County Bank is not tenable. The undisputed testimony shows that the two Moores were engaged in a partnership banking business under the firm name of the Llano County Bank; that W. J. Moore, acting for his firm and Charles Schreiner, bought in the land at the receivership sale and accepted a deed from the receiver conveying the land to Charles Schreiner and the Llano Bank. The difference between the "Llano County Bank" and the "Llano Bank" does not vitiate the deed. The property was paid for with money which belonged to Schreiner and the two Moores; and, to say the least, the deed vested the legal title in Schreiner, and the Moores have an equitable title thereto in proportion to the amount of the consideration which was furnished by them.

There was testimony tending to show that the plaintiff suffered serious mental abberation for several years including the year 1893, but we fail to see what bearing that fact has on the case. It is asserted in his brief that during that time all transactions had with reference to him and his property are null and void; but the defendants are not claiming under the plaintiff, and do not derive their title from any transaction with him.

As to the question of fraud, we think the testimony justified the court in finding against the plaintiff on that issue and that the defendants bought the property in controversy without notice of any fraud for a valuable consideration, and were entitled to protection as innocent purchasers.

No reversible error has been shown, and the judgment is affirmed.

Affirmed.

Writ of error refused.