Bateman v. Brown

• Decision Date: 15 June 1927
• Docket Number: (No. 2836.)
• Citation: 297 S.W. 773
• Court: Texas Court of Appeals
• Parties: BATEMAN et al. v. BROWN et al.<SMALL><SUP>*</SUP></SMALL>

Page 773

297 S.W. 773

BATEMAN et al. v. BROWN et al.^*

(No. 2836.)

Court of Civil Appeals of Texas. Amarillo.

June 15, 1927.

Rehearing Denied September 7, 1927.

Appeal from District Court, Grayson County; Silas Hare, Judge.

Suit by J. S. Brown and others against J. W. Bateman and others. Judgment for plaintiffs and defendants appeal. Affirmed.

Ed Westbrook and Webb & Webb, all of Sherman, for appellants.

Smith & Abernathy, of McKinney, for appellees.

HALL, C. J.

On January 2, 1919, the appellee Brown and his wife conveyed certain land in Grayson county, and described in the appellee's petition, to J. O. Renfrow by warranty deed, and as part consideration Renfrow executed two notes, one for $10,000, and the other for $7,426.25. Both notes matured January 1, 1929, bore interest at 7 per cent. per annum, payable annually; each note contained the usual acceleration clause, providing that the holder at his option might declare both notes due upon failure to pay any annual installment of interest at its maturity. The vendor's lien was retained, and also a deed of trust was executed to better secure the payment of said notes. In March, 1920, Renfrow conveyed the land to R. C. Stone and A. B. Williams, who assumed the payment of said notes, and who on September 25, 1924, conveyed the land to C. C. Hamby, who assumed the payment of the notes, and who on March 10, 1925, conveyed the land to Miss Emma Stewart, who also assumed the payment of the notes, and who on November 10, 1925, conveyed the land to B. B. Banner, who assumed the payment of the notes. All of these deeds were duly recorded in Grayson county, the last two on December 8, 1925. The appellant J. W. Bateman had been leasing this land from the successive owners for a number of years, paying as rental the usual third and fourth. W. D. Bateman, son of J. W. Bateman, lived on the farm and assisted in cultivating the land.

About November 16, 1925, the defendant Banner contracted with Bateman, in writing, whereby the latter leased the farm for the year 1926, for a money consideration of $600, $175 of which was paid in cash, the remaining $425 to be paid December 5, 1925. Bateman did not remove from the farm, and sowed about 35 acres in wheat. Default having been made in the payment of interest, Brown exercised his option, declared the notes due, and filed this suit, on January 23, 1926, against all of the above-named parties to recover the amount of his debt, and for foreclosure of his vendor's and deed of trust liens upon the land. He alleged that the market value of the lands upon which foreclosure was sought was much less than the debt represented by the notes, and upon his application the court appointed a receiver who immediately qualified as such.

None of the defendants answered except J. W. Bateman and his son, W. D. Bateman; they alleged that on November 16, 1925, they entered into a rental contract with their co-defendant Banner, for the rental year of 1926, paid a cash consideration, and sowed 35 acres of the land in wheat. They further alleged that they broke and prepared for planting other parts of the land, and cut the stalks, and prayed that they be protected in their possession of the premises.

A trial to the court without the intervention of a jury resulted in a judgment in favor of plaintiff against the several vendees of the land, who had assumed payment of the notes, and a foreclosure of the liens as to all of the parties. The judgment further provides for immediate possession by the purchaser from the receiver, upon sale of the said lands under the orders of the court, subject, however, to the right of the Batemans of ingress and egress to harvest the wheat then growing on the premises without payment of any rents for such portion of said lands. Appellant Bateman admitted while upon the witness stand that he was informed of the existence of the notes and liens, and that the liens might be foreclosed before he made his last payment of rental, namely, $425.

The appellants Bateman complain of the refusal of the court to amend his finding of fact by adding thereto the further fact that at the time of service of citation upon them, in the suit, they had prepared 30 acres of the land in question for sowing oats. J. W. Bateman testified that he had prepared 30 acres of the land for sowing oats at the time the citation was served, but had not sown the seed at that time; that since the service of the citation he had bedded the land, harrowed, and rebedded it, and about the 1st of February sowed the 30 acres in oats; that the sowing was done after he had been notified of the institution of this suit to foreclose. Bateman made no allegation or proof of any kind as to the value of the labor performed by him in cutting stalks and preparing the land, which he planted in oats.

Under the authorities to be hereinafter discussed, no error is shown by reason of the court's failure to find the additional fact requested.

The second proposition urged is that a tenant, who in good faith leases land in the autumn for the purposes of farming it the following year, and pays the rent in cash, is entitled to be protected against the foreclosure of liens on the land in his use of the premises for the rental year, for the purpose of planting, maturing, and gathering his crop during said year, and that it is error for the court to conclude as a matter of law otherwise and to render judgment depriving him of these rights. On the other hand, plaintiff Brown insists that the foreclosure of his liens, created before Banner leased the premises to appellants, ended the lease, and the purchaser from the receiver, under the orders of the court, was entitled to the possession of the lands subject to Bateman's right to emblements, and it is further insisted that the possession of the receiver in such case is the possession of the purchaser from him, effective from the time the court acquired jurisdiction of the property through the receivership. The appellee further insists that the doctrine of emblements as applied to the facts would give the Batemans, holding under a lease of uncertain duration, only the right to remove the crops planted by them before the termination of the lease, and with a right of ingress and egress for that purpose alone.

The Batemans made the last payment of rent on December 8, 1925, with knowledge at that time that an annual payment of interest would be due Brown upon the notes on January 2, 1926, and with further notice that if Banner, the landlord, did not pay the interest when due, Brown could and might...