Atteberry v. Burnett

• Decision Date: 25 April 1908
• Citation: 114 S.W. 159
• Parties: ATTEBERRY v. BURNETT et al.
• Court: Texas Court of Appeals

114 S.W. 159

ATTEBERRY v. BURNETT et al.

Court of Civil Appeals of Texas.

April 25, 1908.

On Rehearing, December 12, 1908.

Appeal from District Court, Hunt County; T. D. Montrose, Judge.

Action by J. P. Atteberry, administrator of O. W. Spradling, deceased, against Mrs. A. G. Burnett and others. From a judgment granting insufficient relief, plaintiff appeals. Reversed and remanded.

See 113 S. W. 526.

Yates & Carpenter and Atteberry & Peak, for appellant. Neyland & Neyland, for appellees.

TALBOT, J.

Atteberry, as the administrator of the estate of O. W. Spradling, deceased, instituted this suit against the appellees, Mrs. A. G. Burnett, W. F. Jones, and F. M. Newton, on the 19th day of January, 1907.

The original petition, omitting its formal parts, is as follows: "That on or about 1st day of August, 1905, O. W. Spradling departed this life, and that thereafter, to wit, on the 7th day of September, 1906, letters of administration on the estate of said O. W. Spradling were duly granted to J. P. Atteberry, plaintiff, by the county court of Hunt county, Tex., and that thereupon plaintiff duly qualified as such administrator. That administration of the estate of said O. W. Spradling is still open and pending, and that plaintiff and defendants all reside in Hunt county, Tex. That heretofore, to wit, on the 10th day of February, 1898, that the defendant Mrs. A. G. Burnett executed and delivered to C. A. Langford and A. Cameron her certain promissory note for $1,025, payable at Greenville, Tex., both principal and interest. Said note was due on or before the 1st day of January, 1899, with interest from its date until paid at the rate of 10 per cent. per annum, the interest payable annually as it accrues, for value received. This note was given as part payment for a certain lot or parcel of land situated in the city of Greenville, Hunt county, Tex., and being a part of the Epps Gibbons survey, and being the east half of a tract of land deeded by T. A. Ball to W. A. Mowery, January 6, 1887, deed recorded in Book Q, 1, p. 354, Hunt County Deed Records, and bounded as follows: Beginning at the southeast corner of said tract deeded by T. A. Ball to W. A. Mowery; thence north, with E. B. line of same, 86 varas; thence west, with N. B. line of same, 37½ varas; thence south 86 varas; thence east, 37½ varas, to beginning. And it was agreed that, if this note is placed in the hands of an attorney for collection, or if collected by suit, that said A. G. Burnett is to pay 10 per cent. additional as attorney's fees, both on principal and interest. That this note was given for a part of the purchase money of the above-described premises, and, to secure the payment of the said note, a vendor's lien was expressly retained on said land as shown in deed of conveyance, bearing even date of said note, from C. A. Langford and wife, E. C. Langford, and said A. Cameron to said Mrs. A. G. Burnett. That said note was before maturity transferred and delivered to said O. W. Spradling for a valuable consideration, whereby said O. W. Spradling became the legal owner and holder of said note. After the transfer of said note as aforesaid, said A. Cameron and C. A. Langford departed this life, said A. Cameron leaving all interest he held in the above-described land to his surviving widow, P. A. Cameron, and said C. A. Langford leaving as his only heirs J. D. Langford and his surviving widow, Mrs. E. C. Langford, both of whom were 21 years of age on the 12th day of January, 1907, and long prior thereto. On the last date above mentioned there was no administration pending nor any necessity for one on the estate of either said A. Cameron or said C. A. Langford. That on January 12, 1907, said J. D. Langford, Mrs. E. C. Langford, and Mrs. P. A. Cameron executed a deed to J. P. Atteberry, administrator, plaintiff, conveying all their right, title, and interest to said J. P. Atteberry, administrator, in the above-described premises. That, when said note was executed, said F. M. Newton indorsed the above-described note, thereby becoming responsible for the payment of the same. That defendants, though often requested, have never paid said note, but a part thereof, as follows: On January 2, 1899, $558.05; April 12, 1901, $75; June 17, 1901, $107.50; October 24, 1901, $100. But the balance or remainder of said note remains still due and unpaid, to plaintiff's damage $725, and defendants still refuse and fall to pay said balance. That said W. F. Jones is setting up some kind of claim to the above-described land, which is a cloud on the title to plaintiff. Wherefore he prays that defendants be cited to answer this petition, that he have judgment for his debt, interest, and costs of suit, and a 10 per cent. additional as attorney's fees, and for the foreclosure of his lien on the above-described premises, and that they be decreed to be sold according to law; that the sheriff or other officer executing said order of sale shall place the purchaser of the property sold under the same in possession thereof within 30 days after the date of sale, and for general and equitable relief, but, if the court should hold that plaintiff's note is barred by limitation, then plaintiff prays in the alternative for rescission of said sale and to recover said land from said defendants, and that all rights and title of said defendants be divested out of them and be vested in this plaintiff, and that all cloud be removed from plaintiff's title, and for such other and further relief as the court may deem right in law and equity."

The defendant Mrs. Burnett answered by a general demurrer, general denial, and plea of the statute of limitation of four years in bar of the note sued on. The defendant Newton answered, confessing liability on said note. The defendant Jones pleaded a general demurrer, general denial, not guilty, and, among other things, that he become the owner in fee simple of the title to the land described in the plaintiff's petition March 30, 1899, and had held peaceable and adverse possession, etc., of the same under a deed duly recorded for more than five years next before the commencement of this suit. He prayed that plaintiff take nothing, and that he be quieted in his title to the land. By supplemental petition, appellant, after several special exceptions to appellee Jones' answer, pleaded that in his capacity as administrator, as aforesaid, was on, to wit, the ____ day of April, 1899, lawfully seised and possessed of the land in his original petition described, holding the same in fee simple; that on the day and year last aforesaid the defendants entered upon said premises, and ejected the plaintiff therefrom, and unlawfully withheld the possession thereof from this plaintiff, to his damage in the sum...