Burson v. Blackley

• Decision Date: 30 November 1886
• Citation: 2 S.W. 668
• Parties: BURSON <I>v.</I> BLACKLEY and others.
• Court: Texas Supreme Court

2 S.W. 668

BURSON

v.BLACKLEY and others.

Supreme Court of Texas.

November 30, 1886.

Appeal from Hunt county.

Suit on promissory note, and to enforce vendor's lien.

Herndon, Cain & Garrison and E. B. Lewis, for appellant.Perkins, Gilbert & Perkins, for appellee.

STAYTON, J.

G. I. Blackley, claiming to be the agent of the appellant, Burson, contracted verbally to sell to W. J. and G. W. Mayo 100 acres of land, and received thereon a part of the price agreed upon.The evidence bearing upon the question of agency is conflicting.Burson, at that time, was the owner of an undivided one-half interest in the tract of land of which that in controversy is a part; and, soon after the verbal contract was made between Blackley and the Mayos, he conveyed to Blackley his entire interest in the larger tract, which contained 822 acres.This conveyance was made in consideration of $2,000, for which Blackley executed to Burson two notes, each for $1,000, bearing interest from date, and the deed to Blackley expressly retained a lien to secure the purchase money.Soon after Burson made the deed to Blackley the latter made a deed to the Mayos for the hundred acres which, as the agent of Burson, he had verbally agreed to sell to them.This deed was made in consideration of a cash payment of $212.50, and the further sum of $322, secured by two promissory notes executed by the Mayos to Blackley, one for $150, due October 1, 1881, and the other for $172, due November 1, 1881; both bearing interest from date.The deed from Blackley also reserved a lien.These notes seem to have been negotiable, and the larger one seems to have gone into the hands of an innocent holder.After the deed was made by Blackley to the Mayos, with a full knowledge of all the facts existing, the two notes executed by Blackley to Burson being unpaid, Burson received from Blackley a reconveyance of all the land which he had conveyed to him, except the 100 acres which Blackley had conveyed by metes and bounds to the Mayos.Burson claims that the reconveyance of the land, less the hundred acres, was made in consideration of a credit of $1,500 on the notes executed to him by Blackley, and this action was to recover the balance claimed to be due on one of these notes, and to foreclose the lien on the 100 acres sold to the Mayos.The Mayos claim that the interest in the land reconveyed by Blackley to Burson, the note executed by the Mayos to Blackley for $150, and the promise of Blackley to pay to Burson $150, were received in full satisfaction of the two notes executed by Blackley to Burson.The views of the respective parties in this respect are supported by evidence directly conflicting.After the reconveyance by Blackley to Burson, the latter conveyed to Whatley all of his interest in the entire 822 acres, except the 100 acres conveyed by Blackley to the Mayos, and Whatley seems to have acquired the interest of the other co-tenant.No question arises in the case as to the right of Burson or Blackley to sell the hundred acres in controversy as a specific part of the land in which another co-tenant was interested.The defendants alleged that they were innocent purchasers, in ignorance of the lien held by Burson; but the recitals in the deed from Burson to their vendor gave them notice of the existence of the lien.

There were several other defenses set up, none of which, except one, is it necessary to state in view of the questions raised by the assignments of error.The defendants Mayo alleged the reconveyance of Blackley to Burson, and the subsequent conveyance by Burson to Whatley, and that the interest in the 822 acres of land which passed thereby, at the time the reconveyance to Burson was made, was of value largely in excess of the sum due on the two notes then held by Burson and executed by Blackley.The court below instructed the jury, in effect, that if they found this to be true, and further found that Burson received the reconveyance from Blackley with a full knowledge of the transactions between Blackley and the Mayos, then they would find for the defendants.The assignments of error which raise this question are:

"The court erred in refusing to give the first paragraph of the charges asked by plaintiff, which is as follows: `You are instructed that if you believe from the evidence that G. I. Blackley bought an undivided interest of 411 acres of land in the Daniel Slack survey of 822 acres from plaintiff, and gave his notes for the same, and afterwards sold the 100 acres, as alleged, to defendants G. W. and W. J. Mayo, and at the time he made the trade with defendantshe was not the agent of plaintiff, and that plaintiff has never received any part of the foreclosure money except the $1,500 mentioned in the deed from G. I. Blackley to him conveying the 311 acres, then you will find that the 100 acres bought by defendants Mayo, are subject to plaintiff's lien.'

"The court erred in overruling plaintiff's general demurrer to defendants G. W. and W. J. Mayo's amended answer, in this: In their special plea they allege that the 311 acres reconveyed by defendant Blackley to plaintiff was, at the date of the deed, to-wit, the twenty-sixth day of February, 1883, worth $3,500, which was more than the amount due upon the two $1,000 notes; and in said plea they charge no unfairness or fraud on the part of defendant Blackley and plaintiff in said reconveyance, or any purpose to injure defendants G. W. and W. J. Mayo.

"The court erred in refusing a new trial, because of the following error in the charge of the court complained of in the first ground of plaintiff's amended motion, to-wit: `That plaintiff was entitled to have his lien foreclosed on the 100 acres of land in controversy,...