Bankers Trust Company, as Trustee v. Carl Wilson and All Occupants--Appeal from County Court of Robertson County

IN THE

TENTH COURT OF APPEALS

No. 10-96-096-CV

BANKERS TRUST COMPANY, AS TRUSTEE,

Appellant

v.

CARL WILSON AND ALL OCCUPANTS,

Appellees

From the County Court

Robertson County, Texas

Trial Court # 95-8CV

O P I N I O N

Appellant Bankers Trust Company appeals from a judgment of the trial court for Appellees in a forcible entry and detainer action.

Appellant filed a forcible entry and detainer action in the Justice of the Peace Court No. 4 in Robertson County, against Carl Wilson and his family who occupied a house in Hearne. Appellant alleged that it was the owner of the property by virtue of a trustee's deed dated January 3, 1995; that Appellees became tenants at sufferance following the trustee's sale; that Appellant had notified Appellees to move out of the house; that Appellees refused to move; and that Appellant was entitled to possession of the property.

Trial was to a jury which found for Appellees. The court rendered judgment on the verdict that "Carl Wilson and Sharon Wilson will not be forced to vacate their home." Appellant appealed to the County Court where, after a bench trial, the court rendered a judgment "that the previous judgment rendered by Justice of the Peace Court No. 4 will remain and that defendants Carl Wilson and all occupants will not be forced to vacate their home."

The trial court filed findings of fact and conclusions of law as follows:

Findings of Fact

The above matter was submitted to the court without a jury. All facts were considered by the court, including the competing rights to possession of the property in question.

Conclusions of Law

The defendants have a superior right to possession of the property in question.

Appellant appeals in two points of error contending: (1) the trial court erred in adjudicating the merits of title in an action for forcible entry and detainer; and (2) the trial court erred in entering judgment because Bakers Trust conclusively established the right to actual possession.

Appellees represented themselves pro se in the two prior trials and in this court.

The only issue in a forcible entry and detainer action is "the right to actual possession; and the merits of title shall not be adjudicated. Tex. R. Civ. P. 746; Haginas v. Malbis Memorial Foundation, 354 S.W.2d 368, 371 (Tex. 1962).

Carl Wilson and wife, Sharon, executed a deed of trust to Jay Futch conveying the property, here involved, to secure a note payable to Farmers Home Administration, U.S. Department of Agriculture. Farmers Home Administration assigned the deed of trust and the note to Appellant Bankers Trust. The Wilsons defaulted on the note. The property was sold at a foreclosure sale to Bankers Trust on January 3, 1995. The deed of trust provided that in the event of a foreclosure sale, the Wilsons would deliver possession of the property to the purchaser or assume the status of tenants at will. A notice to vacate was sent by Bankers Trust to the Wilsons on January 31, 1995, and the Wilsons have refused to vacate.

Carl Wilson testified that his debt on the house started out at $6,000 twenty-six years ago; that he made many payments but still Appellant asserted he owed $7,816; that ownership of the notes on the house changed hands several times and that many payments were not credited; that in 1994 Appellees painted the house and put on a new roof at a cost of $2,000; that in May 1994, he paid Appellant $1,002; that Appellees had paid over $10,000 to FHA and Appellant on the note on the house.

Appellees have evidenced many equities in their favor, and we can see how and why the trial court rendered the judgment that it did. Nevertheless, under the record, Appellant was the owner of the property, having foreclosed on it at the trustee's sale, and having given Appellees notice to vacate, was entitled to possession.

Appellant's points are sustained. The judgment is reversed and the cause is remanded to the trial court.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Davis,

Justice Cummings, and

Chief Justice McDonald (Retired)

Reversed and remanded

Opinion delivered and filed December 4, 1996

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