Action by T. L. Wren against S. R. Buchanan on a note. From a judgment for plaintiff, defendant appeals. Affirmed.
This suit was brought by the appellee, T. L. Wren, in the district court of Travis county, to recover from the appellant, S. R. Buchanan, the amount due on a certain promissory note dated November 21, 1892, made payable to R. A. Rutherford, due on or before November 1, 1893, for the sum of $1,500, with interest from maturity at the rate of 10 per cent. per annum, with a clause providing for attorney's fees, which note was alleged to have been transferred to T. L. Wren by R. A. Rutherford, for a valuable consideration, on October 23, 1893. In addition to a general denial, the defendant pleaded a particular defense; and, without further details concerning the pleadings, it is sufficient to say that they authorized proof of the facts disclosed by the court's findings. There was a nonjury trial, resulting in a judgment for the plaintiff for the face of the note, interest, and attorney's fee, from which judgment the defendant has appealed.
There is no statement of facts in the record, and the questions of law involved arise out of the findings of fact filed by the trial judge, which findings are as follows: "(1) That, in the year 1892, R. A. Rutherford, in the name of his wife, Erin Rutherford, bought from J. Alleine Brown, Winnie R. Brown, and Clara R. Reaville the plantation known as the `Reaville Plantation,' in Washington county, Texas, and for the unpaid purchase money the said R. A. and Erin Rutherford executed their note for a large sum of money secured by vendor's lien upon said tract of land. (2) That, on the 21st day of November, 1892, the said R. A. Rutherford contracted the rental of said farm to the defendant, S. R. Buchanan, for the year 1893, for the sum of $1,500; and for the
rental thereof the defendant executed to said R. A. Rutherford the note sued on, the following being a copy thereof, to wit: `$1,500. Nov. 21st, 1892. On or before the 1st day of November, 1893, I promise to pay R. A. Rutherford, or order, the sum of fifteen hundred dollars, for the rent of the Reavelle farm, in Washington county, Texas, for the year 1893; this note to bear ten per cent. interest per annum after maturity until paid, and, if suit has to be brought on same for collection, ten per cent. additional for attorney's fees; note to be paid in the city of Austin, Texas. [Signed] S. R. Buchanan.' (3) That in March, 1893, the said J. Alleine Brown, Winnie R. Brown, and Clara R. Reaville brought suit in the district court of Travis county, Texas, against R. A. Rutherford and wife, Erin Rutherford, to collect the notes given for the purchase money on said tract of land, and against S. R. Buchanan, who was in possession of said land, and to foreclose the vendor's lien upon said farm; that said suit was tried on the 23d day of May, 1893, and judgment rendered against said R. A. Rutherford for a large sum of money, and against all of said defendants in said suit, foreclosing the vendor's lien upon said tract of land, and said land was ordered sold to satisfy said judgment. (4) That said suit was on trial several days in said court, and the main purpose of the defense was to get a postponement thereof, so that the defendant Rutherford could collect the rent on the said farm for the year 1893; that the plaintiff, T. L. Wren, knew of this suit. He knew that J. Alleine Brown was suing R. A. Rutherford for the purchase money on a farm in Washington county, and was told by said Brown's attorney and his (Brown's) brother, pending that trial, that Rutherford's object was to get a postponement of the case so that he could collect rent for the year 1893. But said Wren swears that he did not know that it was the Reaville farm, but simply knew that it was a farm that Rutherford had bought from Brown and others. He further says that he did not know who the parties to that suit were except J. Alleine Brown, as plaintiff, and R. A. Rutherford and wife, as defendants; and it is not shown that he did know these facts unless he is affected by constructive notice, under the rule of lis pendens. (5) That on the first Tuesday in August, 1893, under an order of sale issued on said judgment, after due advertisement according to law, the said Reaville plantation, in Washington county, was sold to satisfy the judgment against said Rutherford and wife, when J. Alleine Brown became the purchaser thereof, and the sheriff put him in possession thereof, in this way: The said S. R. Buchanan was notified that he must attorn to said Brown, and he agreed to do so, and remained in possession of said farm, as the tenant of said Brown, after the said sale, and said Brown was in possession thereof in that manner after said sale. The plaintiff, T. L. Wren, swore that he did not know of said sale when he bought the said note, and it was not shown that he did know of it. The testimony does not show whether or not the sheriff's deed was recorded in Washington county. (6) That on the 10th day of June, 1893, before the sale of said place, the defendant wrote a letter to Col. R. A. Rutherford, of which the following is a copy: `Felder, Texas, June 10/93. Col. R. A. Rutherford, Austin, Texas. — Dear Sir: I am informed that the Reaville place now belongs to Prof. Brown, of Chappell Hill. He has already informed me that he is entitled and will collect the rent on same this year. Will not pay rent to anybody until my note is presented by person entitled to same by law. Let me hear from you. Yours very respt. [Signed] S. R. Buchanan.' (7) That, before the maturity of said note, the said Buchanan paid the rent due upon said place to the said J. Alleine Brown, as the owner of said land; Brown having threatened to distrain the crop if he did not pay him, and, to avoid suit, defendant paid Brown the rent. (8) That on the 25th day of October, 1893, the plaintiff, T. L. Wren, bought said note above set out (in finding No. 2) from R. A. Rutherford, the said Rutherford making the sale through Col. Fred Carleton, who was his agent, and who, Wren knew, was his (Rutherford's) attorney in the suit tried in the district court of Travis county, Texas, in which judgment was rendered against Rutherford under which land was sold as aforesaid. Said Carleton and Wren were, and had been for many years, occupying the same office; but Wren knew that Carleton had been attorney for Rutherford in other cases, and Carleton had been attorney for Wren in several cases; but in the purchase of the note Wren acted for himself, and Carleton acted for Rutherford. After default was made in the payment of the note, Wren employed Carleton to collect it for him. Carleton knew at the time of the sale of the note that it was for the rent of the farm that the said suit was about, and that the farm had been sold, and Brown had purchased it, under the order of court rendered in said suit. The foregoing finding contains all that the evidence shows that Wren knew about the matter, unless he is chargeable with constructive notice of the pending of the suit, etc., sale of this tract of land, and the change of tenancy of the defendant from Rutherford to Brown, as aforesaid. At the time of the purchase by Wren of the note, he made no inquiry of Carleton about it, but Carleton told him that defendant was a merchant, and he understood him to be good for the note; and Wren said he would give him 738 acres of land in Wichita county, Texas, for the note, which Carleton accepted after consultation with Rutherford; and Wren deeded the land to Rutherford, and Rutherford wrote the following across the back of the note, and delivered it by his said agent to Wren, to wit: `Pay to T. L. Wren, or order. Dated Oct. 25, 1893. [Signed] R. A. Rutherford.' The value of the land and the character of Wren's
title were not shown. (9) That no part of said note has been paid, and T. L. Wren is yet the owner and holder of same, and there is now due thereon principal $1,500, and $31.25 interest to this date; and, as it was necessary to bring this suit to collect this note, there is due on it $153.12 attorney's fees, making a total of $1,684.37 now due upon said note under its terms, if the same is collectible in the hands of said Wren."
In his conclusions of law, the trial judge states that the facts do not show that, in the purchase of the note, Wren had, or was chargeable with, knowledge of the defense interposed by the defendant, nor that he acted in bad faith, but, on the contrary, that he purchased the note in good faith.
Appellant's assignments of error are as follows: "(1) The court erred in concluding that the note sued on is a negotiable instrument. (2) The court erred in concluding that plaintiff, Wren, was a bona fide purchaser, without actual notice. (3) The court erred in concluding that plaintiff, Wren, was a bona fide purchaser, without constructive notice. (4) The court erred in not finding, according to agreement of counsel filed before trial, that upon purchase of the Reaville farm, on Tuesday, August 1, 1893, at sheriff's sale, by J. Alleine Brown, said Brown was put in possession thereof by the sheriff, and had possession on Nov. 1, 1893, when the note sued on, given for rent of said premises, fell due." The first assignment of error is not copied even in substance in appellant's brief, as required by the rules; but as appellee has copied it in his brief, and has not objected to its consideration, we have considered the questions raised by said assignment.
W. M. Brown and Fisher & Townes, for appellant. Fred Carleton, for appellee.
KEY, J. (after stating the facts).
1. According to the ruling made in Hearne v. Lewis, 78 Tex. 276, 14 S. W. 572, the note sued on, and given for the rent of the Reaville farm, not being due when said farm was sold under the...
