Abbott v. Stiff

• Decision Date: 14 May 1904
• Citation: 81 S.W. 562
• Parties: ABBOTT v. STIFF et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

81 S.W. 562

ABBOTT v. STIFF et al.^*

Court of Civil Appeals of Texas.

May 14, 1904.

Appeal from District Court, Collin County: J. M. Pearson, Judge.

Action by S. H. Abbott against Price Stiff, administrator of Joe Priestly, deceased, and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Garnett & Smith, for appellant. W. C. Jones, H. L. Davis, and Abernathy & Abernathy, for appellees.

RAINEY, C. J.

Appellant sued appellee Stiff, as administrator of the estate of Joe Priestly, and Priestly's heirs, to recover 20 acres of land, or in the alternative to recover on certain notes given for the purchase price of same, and to foreclose a vendor's lien thereon. The appellee pleaded payment, and verdict and judgment were rendered in favor of appellees, from which this appeal is prosecuted.

The evidence shows that in 1895 Abbott sold to Priestly the 20 acres of land sued for, in consideration of $700, which was evidenced by seven promissory notes, for $100 each—one note payable each year thereafter —to secure same. A lien was reserved in the deed to the land. The evidence is sufficient to show that Priestly paid off and discharged the notes, and the jury were warranted in so finding. Abbott claimed that by mutual understanding the sale had been rescinded, and Priestly had been occupying the land as a tenant. He introduced mortgages executed by Priestly for the years 1895 to 1899, inclusive, to secure notes of Priestly for different amounts, and other than the land notes. In the mortgage executed in February, 1896, is this clause: "I agree to give possession of the land by January 1st, 1897." Abbott's book was introduced, showing his account with Priestly; but the record fails to show the items or amounts of same, and the record fails to definitely show for what the notes and mortgages were given. There was evidence showing that Priestly remained in possession of the land until his death, and his heirs afterwards; that he paid taxes on the land; and that he paid appellant more money than was sufficient to pay off and discharge the notes. Priestly could neither read nor write, and the only paper presented by the appellees was a receipt executed by appellant, showing a payment of about $186 by Priestly on the land notes, but which was not credited on said notes.

The court instructed the jury, in effect:

(1) That if the land notes were not paid, and during the lifetime of Priestly a mutual agreement was made between him and Abbott to rescind the contract of sale of the land, to find for plaintiff, though no written reconveyance was made to Abbott, and, if Priestly rented the land up to his death, and defendants retained possession of same thereafter, to find for plaintiff the rental value of said land for the time defendants so held same.

(2) That if there was no rescission, and the notes had been executed, and not paid, to find for plaintiff the amount of same, and foreclose the lien.

(3) That if Priestly paid sums on said notes, but not sufficient in amount to pay off and discharge same, to find for plaintiff the balance due, with foreclosure of lien.

(4) That if Priestly was indebted to plaintiff for matters other than the land notes, and made payments to Abbott, then proper directions were given as to how such payments should be applied.

(5) If the notes had been paid off and discharged in full, to find for defendants.

(6) That if Priestly had paid Abbott more than was sufficient to pay off and discharge all indebtedness whatever due Abbott, then defendants were entitled to judgment for the overplus.

(7) That the burden was on defendants to show by a preponderance of evidence that...