Bumpass v. Bond

• Decision Date: 06 April 1938
• Docket Number: No. 7235.,7235.
• Citation: 114 S.W.2d 1172
• Parties: BUMPASS et al. v. BOND.
• Court: Texas Supreme Court

Page 1172

114 S.W.2d 1172

BUMPASS et al. v. BOND.

No. 7235.

Supreme Court of Texas.

April 6, 1938.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Suit by Joel R. Bond against Ed R. Bumpass and others for the amount due on a vendor's lien note and for the foreclosure of a vendor's lien on land. To review a judgment as reformed and affirmed in the Court of Civil Appeals, 100 S.W.2d 1047, the defendants bring error.

Judgment of the Court of Civil Appeals affirmed.

Bond & Porter, of Terrell, Leake, Henry & Young, of Dallas, and Frank Killough and W. G. Sears, both of Houston, for plaintiffs in error.

Renfro, McCombs & Kilgore, Renfro & Kilgore, and Joel R. Bond, pro se, all of Dallas, for defendant in error.

SHARP, Justice.

This controversy involves the construction of a deed executed by Joel R. Bond and wife to Ed R. Bumpass, dated January 11, 1929, wherein the grantors conveyed to the grantee, for a consideration of $7,448.80, evidenced by a vendor's lien note, several tracts of land, situated in Kaufman county, Tex., aggregating 568.4 acres. Suit was filed by Joel R. Bond against Ed R. Bumpass et al. for the amount due on his note, and for a foreclosure of his lien against the entire land, recognizing that W. P. Allen held a prior lien on 9/11 interest in said land. Bond claims his lien by virtue of the deed above described, and also claims an additional lien by virtue of a deed of trust executed by Ed R. Bumpass in 1936. The case was tried before a jury; and after the introduction of the testimony the trial court held that there were no issues to be submitted to the jury. The trial court also held that Bond was entitled to a foreclosure of his lien only as to a 2/11 interest in the land, and not on the entire interest, as claimed by him. Joel R. Bond appealed to the Court of Civil Appeals at Dallas, and that court reformed that part of the judgment of the trial court which foreclosed the lien held by Bond only as to 2/11 interest in the land, and rendered judgment in his favor for foreclosure of the lien on the entire interest in the land, subject to prior liens, and the judgment of the trial court as reformed was affirmed. 100 S.W.2d 1047.

For brevity's sake we will refer to Judge Bumpass as Bumpass, and to Judge Bond as Bond. Bumpass filed an application for writ of error; and Bond also filed an application for writ of error, to be considered provided the application of Bumpass should be granted. This court granted both writs, in order to review the opinion of the Court of Civil Appeals.

Bumpass contends that the deed from Bond and wife to him simply conveyed an undivided 2/11 interest, and not the entire interest, in the land described in the deed, and that by reason of the restrictive language used in the deed, the vendor's lien created therein attached only to the 2/11 interest actually owned and sold by Bond, and that Bond cannot claim a lien on the 9/11 interest owned by the grantee, in the absence of an express contract lien therefor. On the other hand, Bond contends that the deed from himself and wife to Bumpass conveyed the entire interest in the land, and retained a vendor's lien against the entire interest to secure the payment of same. He also claims an additional lien by virtue of a deed of trust executed by Bumpass in 1936.

The deed, except as herein noted, is a general warranty deed, and the pertinent parts thereof read: "We have Granted, Sold and Conveyed, and by these presents do Grant, Sell and Convey, unto the said Ed R. Bumpass of the County of Kaufman, State of Texas, all that certain lots, tracts or parcels of land situated in Kaufman County, Texas, and described as follows: [Then follows a description of the seven tracts of land conveyed therein by metes and bounds, without any restriction whatsoever limiting the interest in the land to less than the entire interest as described therein.]"

The deed concludes as follows:

"To have and to hold the above described premises, together with all and singular the rights and appurtenances thereto, in anywise belonging unto the said Ed R. Bumpass, his heirs and assigns forever, and we do hereby bind ourselves, our heirs, executors and administrators to warrant and forever defend, all and singular the said premises unto the said Ed R. Bumpass, his heirs and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof. But it is expressly understood and agreed that the grantors herein do not agree to warrant and forever defend the title to the above described premises except only as to an undivided two-elevenths (2/11) interest therein which is owned and held by the grantors.

"But it is expressly agreed and stipulated that the vendor's lien is retained against the above described property, premises and improvements, until the above described note and all interest thereon are fully paid according to its face, tenor, effect and reading, when this deed shall become absolute."

The vendor's lien note described in the deed also contains the following description of the land: "This Note is given in payment for a certain lot or parcel of land situated in Kaufman County, Texas, and being 439.04 acres of the R. Sowell Survey and 129 acres of the E. English Survey, and being the same land this day conveyed to Ed R. Bumpass by Joel R. Bond and wife Sara Lillian Bond and to secure the payment hereof, according to the tenor hereof a Vendor's Lien is retained in this Note, and in said conveyance."

On January 1, 1936, Bumpass executed a note renewing and extending the original note of date January 11, 1929, wherein he acknowledged the existence of the lien on the entire interest in the land, and also executed a deed of trust, dated January 13, 1936, to Fred T. Porter, trustee, wherein said land was described, without any restriction or limitation as to the interest conveyed, and such additional lien was given to secure the original note, together with the interest thereon, described in the deed dated January 11, 1929.

Mr. Justice Looney in his opinion has clearly stated the substance of the pleadings filed by all parties (to which opinion we refer for a more detailed statement of such pleadings), and has aptly and tersely stated the issues in the following language: "To summarize, the issues presented to the trial court are these: Appellant claimed a first lien upon a 2/11 undivided interest in the 568.4 acres of land; W. P. Allen claimed a first lien upon an undivided 9/11 of said land to secure balance...