By his warranty deed, dated the 18th day of January, 1918, W. L. McClendon conveyed to R. Hairston two tracts of land out of the Thomas Smith headright survey in Shelby County; tract No. 1 described as containing "about 57 1/2 acres of land", and tract No. 2 as containing 80 acres of land. On the 19th day of November, 1919, Robert Hairston, joined by his wife, executed a deed of trust to appellant, The Federal Land Bank of Houston, naming H. M. Gossett as trustee, to secure appellant in the payment of their note to it, of even date with the deed of trust, for the sum of $2,000. Under a sale by its trustee, foreclosing its deed of trust, appellant bought all the land covered by its deed of trust and was given a deed by its trustee, dated the 13th day of September, 1935.
This was an action in trespass to try title by appellant against A. B. Brooks, Dr. G. B. Lake, Robert Hairston and wife, Ida Hairston, Mrs. Vivie Taylor, a widow, individually and as administratrix of the estate of W. A. Taylor, deceased, Rebecca Ann Taylor, a minor, Mrs. Stroud Kelly, widow, individually and as administratrix of the estate of Stroud Kelly, deceased, W. H. Kelly, a minor, L. R. Wallace, Guaranty State Bank of Timpson, and the Center National Farm Loan Association, to recover the title and possession of the land described in the deed of trust from Hairston to appellant. By an alternative plea, appellant plead the execution of its deed of trust, the foreclosure of the deed of trust under a sale by its trustee, and its purchase at its trustee's sale, and the conveyance to it of the title to the land by the trustee, by deed dated the 13th day of September, 1935; and prayed that, if for any reason it was denied recovery under its action in trespass to try title, it have judgment for its debt against Robert Hairston, who had executed its note, the Center National Farm Loan Association, who had endorsed its note, and A. B. Brooks and Dr. G. B. Lake, who had assumed the payment of its note, and that it have a foreclosure of the deed of trust lien against all of the defendants. Of the answers and cross actions of the *Page 163 defendants, it is sufficient to say that they filed pleas of not guilty.
On trial to the court without a jury, appellant gave notice to the defendants, and each of them, that it would develop its title under the theory of common source, and that in proof of its title it would offer in evidence the following deeds, and under its notice, these deeds were offered and received in evidence: (a) The deed from McClendon to Hairston; the deed of trust from Hairston to Gossett for its benefit; the deed by its trustee under the foreclosure of its deed of trust, dated the 13th day of September, 1935; (b) Deed dated the 30th day of December, 1932, from Robert Hairston, conveying to Stroud Kelly and T. P. Todd 66 acres of land deeded to him by McClendon and conveyed by him to Gossett as trustee; deed dated the 19th day of September, 1923, from Kelly and Todd, conveying this 66 acres to W. A. Taylor; deed dated the 2nd day of January, 1924, from W. A. Taylor, conveying this 66 acres to A. B. Brooks; deed dated the 2nd day of September, 1929, from A. B. Brooks, conveying this 66 acres back to W. A. Taylor; (c) Deed from Robert Hairston to H. P. McLendon, dated the 12th day of January, 1920, conveying to H. P. McLendon the 71 1/2 acres of land conveyed by W. L. McClendon to Robert Hairston, and by Robert Hairston to Gossett as trustee for appellant; deed dated the 2nd day of December, 1922, from H. P. McLendon, conveying this 71 1/2 acres to G. B. Lake; deed dated the 20th day of October, 1923, from G. B. Lake, conveying this 71 1/2 acres to A. B. Brooks. The instruments recited above were all the muniments of title offered in evidence.
On conclusion of the evidence, the lower court rendered judgment in favor of appellant against all the defendants for the above described 66 acres of land; judgment was also rendered in favor of appellant against all the defendants for the 71 1/2 acres of land except "as to the defendants, Mrs. Vivie Taylor, individually and as administratrix of the estate of W. A. Taylor, deceased, Rebecca Ann Taylor, a minor, and Mrs. Stroud Kelly individually and as administratrix of the estate of Stroud Kelly, deceased," hereinafter referred to as appellees, and as to them it was decreed that "The Federal Land Bank of Houston, shall take nothing as to the 71-1/2 acres tract of land as hereinafter described." Appellant has perfected its appeal to this court from that part of the judgment denying it recovery against the appellees.
All parties concede that appellant was entitled to judgment for the 66 acres of land against all of the defendants; in this respect the judgment of the lower court is affirmed.
We overrule appellees' contention that the 66 acres of land and the 71 1/2 acres of land were not shown to be a part of, and to constitute, the land conveyed by Robert Hairston to Gossett as trustee for appellant.
We sustain appellees' contention that appellant failed to show common source between its claim to the 71 1/2 acres of land and any right, title, claim, or interest claimed by appellees; the two chains of title offered in evidence by appellant wholly failed to raise the issue of common source. Appellant made no effort to offer in evidence the chain of title from the original grantee, nor did it offer any evidence of prior possession. The plea of not guilty filed by appellees put appellant, as plaintiff, upon affirmative proof of its title. Appellant could have protected its interest, on the conclusion of the introduction of its evidence, by taking a nonsuit as to appellees. It did not do that, but asked for a judgment on its action in trespass to try title against them at the hands of the court. The evidence compelled the court to render judgment against appellant on the issue of title of the 71 1/2 acres of land as it related to its claim against the appellees.
Appellant can have no relief on its alternative plea to enforce its deed of trust against appellees. The deed of trust was merged into its title by the deed made to it by its trustee, and no attack was made upon the trustee's sale.
It follows that the judgment of the lower court should be affirmed, and it is accordingly so ordered.
Affirmed.