Summary
In Lewisville State Bank v. Blanton, 525 S.W.2d 696 (Tex.Sup. 1975), a case the majority termed as controlling, the Supreme Court noted that the only summary judgment proof of the issue in question was an affidavit of an interested witness stating facts of which the defendants had no knowledge or ready means of confirmation and, therefore, the Court concluded the affidavit alone was insufficient to conclusively establish the facts necessary to support the summary judgment.
Summary of this case from Navarro v. ColloraOpinion
No. B — 5298.
July 16, 1975.
Appeal from the District Court, Dallas County, Leftwich, J.
Gardere, Porter DeHay, Gordon H. Rowe, Jr., Raymond Sullivan, Dallas, Robert H. Caldwell, Jr., Denton, for petitioners.
Tom Thomas, Dallas, for respondent.
C. F. Blanton brought this suit to remove the cloud upon his title to an undivided interest in 15.25 acres of land in Dallas County. The defendants were judgment creditors of W. H. Blanton. The abstracts of their judgments were filed and recorded by the Dallas County Clerk between July 1971 and March 1972. The deed from W. H. Blanton to C. F. Blanton, which effectively conveyed W. H. Blanton's legal interest in the land, was executed on July 8, 1972.
The trial court rendered summary judgment in favor of C. F. Blanton, and the Court of Civil Appeals affirmed. 520 S.W.2d 607.
The basis of the summary judgment is that C. F. Blanton owned the equitable title to this interest prior to the time of the attachment of defendants' judgment liens. The summary judgment evidence of this prior title is an affidavit by C. F. Blanton in which he states that he obtained the equitable ownership by agreement with W. H. Blanton in 1969 and by payment of $25,031 to discharge a deed of trust lien and note which W. H. Blanton had made against the land. An affidavit by an interested party to a matter of which the adversaries have no knowledge or ready means of confirmation does no more than raise an issue of fact. The affidavit does not establish the facts conclusively, and it therefore will not support a summary judgment. Swilley v. Hughes, 488 S.W.2d 64 (Tex. 1972); Broussard v. Moon, 431 S.W.2d 534 (Tex. 1968); Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (Tex. 1965).
Pursuant to Texas Rules of Civil Procedure, rule 483 we grant writ of error and, without hearing oral argument, reverse the judgments of the District Court and Court of Civil Appeals, and remand the cause to the District Court for trial.