WILLSON, C. J.
¶1
(after stating the case as above).
¶2
It is insisted that the judgment from which this appeal is prosecuted is fundamentally erroneous, in that it decrees a cancellation in toto of (1) the judgment in said suit No. 1107S, (2) the order of sale issued on that judgment, and (8) the sheriff’s deed conveying the 100 acres to appellant as the purchaser thereof at the sale under said order and judgment. The contention is that in any event the instruments were invalid only so far as they affected the title in Patsy McKnight to an undivided interest of three-fourths of the 100 acres, and that said instruments therefore should have been canceled only so far as they affected that undivided interest. The contention is sustained, and the judgment now before us for revision will be reformed so as to cancel the judgment in said suit No. 11078 only that far, divesting out of appellant any right, title, and interest in him in said three-fourths undivided interest in said 100 acres by virtue of said judgment, order of sale issued thereon, and sheriff’s deed, and vesting same in appellee Patsy McKnight. Other contentions presented in appellant’s 'brief will be overruled, and said judgment in said suit No. 11078, when reformed as indicated, will be affirmed.
¶3
The prayer in appellees’ petition was for relief only as to Patsy MeKnight’s said undivided interest. Had the error in the judgment been called to the court’s attention during the term at which said judgment in suit No. 11078 was rendered, it doubtless would have been corrected to conform to said prayer. Therefore the costs of this appeal as well as the costs-in the court below will be adjudged against appellant.
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Case posture Posture Appeal from District Court, Fannin County; Thos. P. Steger, Judge.
Action by Patsy McKnight and others against R. T. Lipscomb. Judgment for plaintiffs, and defendant appeals.
Judgment reformed, and as so reformed, affirmed.
By a suit (No. 11078 on the docket of the district court of Fannin county) commenced September 25, 1928, appellant R. T. Lipscomb sought, and on October 30, 1928, recovered, judgment against appellee Frank McKnight for $6,550.78 and foreclosing as against said Frank McKnight an asserted vendor's lien on 20 acres of land, created, it was alleged, to secure the payment of $3,915.61 of the amount, and foreclosing as against said Frank McKnight and appellee Patsy McKnight, his wife, an asserted lien on a tract of 100 acres, created, it was alleged, to secure the payment of the remaining $2,535.17. By virtue of an order of sale afterwards issued on the judgment, the 20 acres and the 100 acres were separately sold. Appellant was the purchaser at the sale, and the land was conveyed to him as such by deeds made by the sheriff, dated February 5, 1929. This suit was commenced in said district court March 1, 1929, by appellee Patsy McKnight as plaintiff, joined (quoting) pro forma by her husband Frank McKnight, against appellant as defendant. It was to cancel the judgment rendered October 30, 1928, in said suit No. 11078, in so far (quoting) as it pertains to or affects the title or possession of the plaintiff Patsy McKnight in and to an undivided three fourths interest in the 100 acres, and to cancel the sheriff's deed so far as it purported to convey such interest to appellant. The trial was to the court without a jury. At the request of the appellant, the judge, as required by the statute (article 2208, R.S. 1925) stated in writing the conclusions of fact found by him separately from the conclusions of law, and same are a part of the record on this appeal. It conclusively appeared in the evidence that appellee Patsy McKnight was the owner in her own separate right of a three-fourths undivided interest in the 100-acre tract; that the owners (to wit, the heirs of Antney McDade, deceased) of the remaining undivided interest conveyed same to appellee Frank McKnight by a deed dated August 12, 1913; and that appellees on that date were husband and wife, and with their children occupied and used and ever afterward to the time of the trial continued to occupy and use the 100 acres as their homestead. The consideration to the McDade heirs for their undivided interest in the 100 acres was promissory notes made by Frank McKnight and purporting also to have been made by Patsy McKnight. It appeared from recitals in the deed conveying said interest to Frank McKnight that the vendor's lien retained to secure the payment of the notes was on the Antney McDade undivided interest alone, but according to recitals in the notes just referred to the lien retained was on the entire 100 acres. The allegation in appellant's petition in said suit No. 11078 was in accordance with the recitals in the notes. The allegation in said petition as to the indebtedness secured by the lien asserted on the 20 acres was that such indebtedness was evidenced by notes made by Frank McKnight, payable to the order of one F. W. Underwood. There was no allegation that Underwood ever assigned the notes to appellant or to any one else, and no allegation that appellant was either the
owner or holder of the notes. The judgment in said suit No. 11078 was by default. Among findings made by the court on the trial resulting in the judgment from which this appeal is prosecuted were the following, in substance: (1) That Patsy McKnight and Frank McKnight were ignorant negroes. Patsy was 57 years old; Frank appeared to be as old or older. (2) That on the day they were cited to be present to answer appellant's petition in said suit No. 11078 they went to the courthouse in Bonham, and Frank was there told by said F. W. Underwood that there was no need for them to have any further trouble over the notes, and that if he would go to Honey Grove he, F. W. Underwood, would let him arrange the matter so as to help him, the said Frank McKnight, in said matter and give him time to pay the same. (3) That within two or three days after he had the conversation with Underwood, Frank McKnight did go to Honey Grove and there signed an instrument in writing which he then delivered to said Underwood. (4) That Frank McKnight believed from the statement made to him by F. W. Underwood and the conversation had with him and the making of the said new instrument at Honey Grove that it would not be necessary for him or his wife, Patsy McKnight, to employ counsel in the case in which they had been sued, or further attend court in same, and that he believed that he had made all of the arrangements necessary to dispose of the case against him and his wife and that no judgment would be taken or obtained against him or either of them on the vendor lien notes. (5) That appellees did not pay any further attention to said suit against them, No. 11078, after the conversation and transaction with the said F. W. Underwood, and believed that Underwood owned said notes; that Frank McKnight had for many years transacted business with F. W. Underwood, borrowing money from him and mortgaging crops, etc., to him, Mr. Underwood being a banker at Honey Grove and engaged in business at that place, and appellees believed said Underwood owned and controlled the notes involved in said suit No. 11078 and controlled that suit and would protect their interest therein. (6) That appellees did not know a judgment in said suit No. 11078 had been rendered against them until after the court which rendered it had adjourned for the term. (7) That at the trial of said suit No. 11078 the notes made to the Antney McDade heirs were before the court as evidence, but the deed from said heirs to Frank McKnight was not, and the court who tried that suit did not have before him or consider any evidence showing what interest was conveyed by the Antney McDade heirs to Frank McKnight except the recital in the notes which showed the entire 100 acres to have been so conveyed, whereas the truth was, as shown by the deed not in evidence, that only an undivided interest in the 100 acres was conveyed. (8) That the court trying said suit No. 11078 had no facts or evidence before him showing that the vendor's lien therein sought to be foreclosed was only upon the undivided interest owned by said Antney McDade heirs in the 100 acres. (9) That Patsy McKnight never in fact executed the note made by Frank McKnight to the Antney McDade heirs and purporting also to have been made by her. (10) That appellees were not guilty of negligence in failing to defend said suit No. 11078, nor in failing to sooner institute this suit to cancel the judgment in that one and the sheriff's deed conveying the entire 100 acres in question to appellant. Among the court's conclusions of law were the following: (1) That the notes made to the Antney McDade heirs did not create a lien upon the three-fourths undivided interest of Patsy McKnight in the 100 acres tract. (2) That Patsy had a good, sufficient and meritorious defense to the cause of action in cause No. 11078 in so far as it pertained to a foreclosure of any lien upon her undivided three-fourths interest in the 100 acres of land. (3) That Patsy and Frank were prevented from answering in said suit No. 11078 and asserting their defense to same by reason of a mistake of fact, and that they were led to believe that their rights in said matter had been fully arranged and protected. (4) That the failure of Patsy and Frank to present and assert their defense to the plaintiffs (appellants) cause No. 11078 was not occasioned by any neglect or failure of theirs or either of them, and that they used due diligence in looking after their interest in said suit. (5) That material and important facts were withheld from the court in the trial of cause No. 11078, and that the true facts with reference to exactly what land was covered by the notes to the Antney McDade heirs were not shown to the court nor introduced in evidence, and that thereby said judgment foreclosing a vendor lien upon the entire 100 acres of land was fraudulently obtained from the court, which the court would not have rendered in said cause had the deed from the Antney McDade heirs to Frank McKnight in which the vendor lien was created been introduced in evidence before him and which would have shown that the lien existed only upon an undivided interest in said land. (6) That the facts and circumstances which caused Frank McKnight and Patsy McKnight to fail to appear and defend in said cause No. 11078, and to fail to sooner take steps for relief therefrom, constituted a fraud in law against their rights. The appeal is from a judgment in appellees' favor canceling the judgment and order of sale issued thereon in said suit No. 11078 and the deed by the sheriff conveying the 100-acre tract to appellant. Source: CourtListener
