Burnett v. Atteberry

• Decision Date: 03 April 1912
• Parties: BURNETT et al. v. ATTEBERRY.
• Court: Texas Supreme Court

145 S.W. 582

BURNETT et al. v. ATTEBERRY.

Supreme Court of Texas.

April 3, 1912.

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

Action by J. P. Atteberry, administrator of O. W. Spradling, deceased, against Mrs. A. G. Burnett and others. There was a judgment of the Court of Civil Appeals (130 S. W. 1028) affirming in part a judgment for defendants and reversing and rendering in part, and defendants bring error. Affirmed in part, and reversed in part.

Neyland & Neyland, of Greenville, for plaintiffs in error. Thompson & Mead, of Greenville, for defendant in error.

DIBRELL, J.

This suit was brought by J. P. Atteberry, administrator of the estate of O. W. Spradling, deceased, against the defendants, Mrs. A. G. Burnett, F. M. Newton, and W. F. Jones, upon a vendor's lien note originally for $1,025, dated February 10, 1898, given for part of the purchase money due for the property the subject of this controversy; the said lien being specially retained in the deed of conveyance. The note was alleged to have been given by the defendant Mrs. A. G. Burnett to A. Cameron and C. A. Langford, her vendors, and was due on or before January 1, 1899, bearing interest at 10 per cent. from date and providing for 10 per cent. attorney's fees. The defendant F. M. Newton was sued as indorser of the note, and the defendant W. F. Jones was alleged to be setting up some sort of a claim to the property against which the suit was directed. Plaintiff claimed that his decedent was the owner of the note sued on by regular transfer from the original owners, and that after his said decedent became the owner of said note, the wife and sole legatee of A. Cameron, one of the original owners of said note, and Mrs. E. C. Langford and and J. D. Langford, and wife and son and sole heirs of C. A. Langford, deceased, the other original owner of said note, conveyed to his said decedent all their right, title, and interest in and to the property in controversy, thereby making the said O. W. Spradling, the owner of the vendor's lien note together with the superior title to the conveyed premises. The relief sought was in the alternative for judgment on the note with foreclosure of the vendor's lien, or if the court should hold the note was barred by the statute of limitation, then for the property. Subsequently by amendment plaintiff sought only to recover the land. The defendant Mrs. A. G. Burnett answered by a plea of general denial and the statute of limitation of four years in bar of recovery against her on the note upon which the suit was originally based. Defendant F. M. Newton answered admitting that the debt sued on was his obligation, having become such by special agreement with the owners of the note in consideration that they would release the vendor's lien against the property in controversy. Defendant Jones pleaded the general demurrer, general denial, and specially the statute of limitation of four years against recovery of the note sued on, the release of the vendor's lien against the land in controversy by C. A. Langford upon consideration that F. M. Newton pay in cash the half interest in said note owned by A. Cameron and become liable personally for the payment of the balance due on said note, estoppel in pais against plaintiff to assert the vendor's lien against the land in controversy, the statute of three, five, and ten years' limitations, and other special pleas not necessary to be mentioned. The cause was tried by the court without the assistance of a jury and judgment rendered for the defendants. Upon appeal to the honorable Court of Civil Appeals (J. P. Atteberry, Adm'r, v. Mrs. A. G. Burnett et al., 130 S. W. 1028), the judgment of the trial court was on June 25, 1910, affirmed in part and reversed and rendered in part; the effect of such judgment being to give one half of the property to plaintiff, as administrator of the estate of C. A. Langford, deceased, and the other half to the defendant, Jones.

That a more perfect understanding of the issues in the case may be had, we reproduce the findings of fact and conclusions of law of the learned trial judge, which form the basis of his judgment: "On February 10, 1888, C. A. Langford and wife and A. Cameron executed a deed in writing, conveying to Mrs. A. G. Burnett, one of the defendants herein, the land in controversy. Said deed recited a cash consideration paid by Mrs. A. G. Burnett and described a certain promissory note executed by her, on said date, for $1,025, with interest from date at the rate of 10 per cent. per annum, payable to C. A. Langford and A. Cameron, and to become due on the 1st day of January, 1899, and which deed and note reserved the vendor's lien upon the premises in controversy to secure the payment of said note. On the 12th day of January, 1907, said A. Cameron and C. A. Langford both being deceased, Mrs. P. A. Cameron, E. C. Langford, and J. D. Langford executed and delivered to the plaintiff, as administrator of the estate of O. W. Spradling deceased, a quitclaim deed to the property in controversy. On January 2, 1899, F. M. Newton paid to C. A. Langford, for the use of A. Cameron, the sum of $558.05; it being one-half of the said note and interest on the said date. On said last-named date, and at the time of the said payment, the said F. M. Newton informed the said Langford that he was on a trade to sell the property to the defendant F. W. Jones, and that he could not do so unless the vendor's lien, named in the deed from Langford and wife and A. Cameron to Mrs. A. G. Burnett, was released or waived. The said Newton offered to the said Langford some vendor's lien notes on other property in settlement of the remainder of the said notes, but that the said Langford refused to receive same as a payment on the said note, but he, at the time, agreed that, if the said F. M. Newton would indorse the said note and make it his own note, he would look to the said Newton personally for the payment of the same, and the said Langford then and there waived the vendor's lien, which secured the said note, on the property in controversy. The said Newton then and there indorsed the said note, and the said Langford told the said Newton that he could go ahead and make his said trade with the said Jones, free from any lien reserved in the said deed to Mrs. A. G. Burnett, or in the note executed by her. On April 12, 1901, Newton paid to Langford the sum of $75 on the note. On June 17, 1901, he paid the said Langford the said sum of $107.50 on said note. On October 24, 1901, he paid to the agent of said Langford the sum of $100. Up to the date of the last-named payment there had been no transfer of the said note to the said Spradling, deceased. During the whole time that had elapsed between the 2d day of January, 1899, and the date of the death of the said Langford, he had kept the existence of the said note a secret from the said Jones and had been looking to and receiving payment from the said Newton only. He instructed his agent to present the note to the said Newton when he (Langford) was away from home in the fall of 1901, and not to let the said Jones know anything about the note, and that the said agent collected the last-named credit on said note, and did not let the said Jones know anything about the existence of said note according to the instruction of said Langford. Langford knew that the said Jones went into the possession of the said property in controversy on the 30th day of March, 1899, with the honest belief that he held a title free from any incumbrance, and that his possession was adverse and hostile to all the world, and said note was not transferred to O. W. Spradling, deceased, until long after its maturity, and that Langford was the agent for the collection of the note after O. W. Spradling became the owner of same for many years and up to the death of the said Spradling, which occurred on August 1, 1905. Langford and one William Matthews were the executors of the will of the said Spradling until July 18, 1906, when they resigned, and on the 23d day of July, 1906, J. P. Atteberry qualified as temporary administrator of said estate, and on the 8th day of September, 1906, qualified as permanent administrator of the said estate of O. W. Spradling, deceased, with will annexed. The defendant Jones was not informed by said Langford or any one else of the existence of said note until November 12, 1906. F. M. Newton was solvent and financially responsible until after the year 1904, but he was insolvent when this suit was filed."

Upon the foregoing facts, the trial judge concluded as a matter of law: "That the waiver of the vendor's lien made by C. A. Langford on January 2, 1899, in consideration of F. M. Newton indorsing the note and becoming personally liable thereon, was valid and binding, and that the property was freed from the vendor's lien. That the possession taken by W. F. Jones on the 30th day of March, 1899, was maintained by him in hostility to the alleged vendor's lien note, within the knowledge of C. A. Langford of his adverse claim, entitled the defendant Jones to the benefit of the statutes of limitations of five years. That the said Langford's conduct for more than six years in keeping the note a secret from defendant Jones, when he knew the said Jones did not know of its existence, and the fact that O. W. Spradling purchased the note long after its maturity and Langford being his agent until his death, and one of his executors, estops the plaintiff from recovering the land, from which facts and conclusions I render judgment for all of the defendants."

In addition to the foregoing findings of fact, the Court of Civil Appeals found that the appellee Jones was in possession of the land in controversy, and had been continuously since the date of his purchase, and that he had paid all the taxes assessed against said property for every year since his purchase.

The first question to be considered is whether the...