Citizens' Nat. Bank of Waco v. Billingsley

• Court: Texas Court of Appeals
• Writing for the Court: Barcus
• Citation: Citizens' Nat. Bank of Waco v. Billingsley, 300 S.W. 648 (Tex. App. 1927)
• Decision Date: 30 June 1927
• Docket Number: (No. 546.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: CITIZENS' NAT. BANK OF WACO v. BILLINGSLEY et al.

Page 648

300 S.W. 648

CITIZENS' NAT. BANK OF WACO v. BILLINGSLEY et al.

(No. 546.)^*

Court of Civil Appeals of Texas. Waco.

June 30, 1927.

Rehearing Denied September 29, 1927.

Appeal from District Court, Falls County; E. M. Dodson, Judge.

Action by J. B. Billingsley and others against the Citizens' National Bank of Waco. From the judgment, defendant appeals. Affirmed.

F. M. Fitzpatrick, of Waco, for appellant.

Bartlett, Carter & Rice, of Marlin, for appellees.

BARCUS, J.

In 1913, B. F. and J. A. Smith, brothers, purchased 126 acres of land in Falls county, paying $2,300 in cash and executing their four notes for $1,000 each, they having a verbal agreement at said time that B. F. Smith would pay notes 1 and 2, and J. A. Smith notes 3 and 4, and that the land would then be partitioned between them, each taking one-half thereof. The time of payment of the notes was extended, and in January, 1922, B. F. Smith paid the second of his two notes, and J. A. Smith had paid one of his notes. At said time, January, 1922, J. A. and B. F. Smith went on the land and measured it off and divided same, B. F. Smith taking the south half, and J. A. Smith the north half thereof. J. A. Smith at said time agreed that he would pay the unpaid note, and he arranged with the holder thereof for an extension of the time of payment for another year. At the time of the parol division of the land the two brothers drove a stake in the middle of the east and west sides of the land and had a furrow run dividing same in the north and south halves, which division line has been maintained since said date. B. F. Smith at once took actual possession of the south half and has since said date cultivated, used, and rendered same for taxes, and has made valuable improvements thereon. J. A. Smith at once took possession of the north half and has since said date been in actual possession and control thereof and has had same rented and paid the taxes thereon; and neither of said brothers has at any time since said date made any claim to the rentals from or to the land set aside by the parol partition to the other. Appellee Billingsley brought this suit on the last of the four $1,000 notes given by B. F. and J. A. Smith as part of the purchase price of the land and to foreclose the lien securing same on the entire 126 acres. B. F. Smith, by cross-action, claimed that his brother's 63 acres should be first sold to satisfy the said debt. Appellant Citizens' National Bank claimed to have a deed of trust lien as well as an attachment lien on the J. A. Smith undivided half interest in the entire 126-acre tract, and claimed that the entire tract should be sold to pay appellee's note. The cause was tried to the court and resulted in a judgment being rendered for appellee Billingsley foreclosing his lien on the entire tract, but directing that the J. A. Smith 63 acres be sold first, and giving appellant bank a foreclosure of its deed of trust and attachment liens on the J. A. Smith 63 acres, and decreeing the parol partition of the land as made between J. A. and B. F. Smith in 1922 valid and binding.

Appellant bank assigns error to the action of the trial court in overruling its general demurrer, its contention being that appellee Billingsley was the owner of the note sued on by reason of being the sole heir of Mrs. V. C. Billingsley, deceased, and that it was necessary for him to allege that there was no administration and no necessity for administration on her estate. We overrule this assignment. Appellee Billingsley alleged that he was the sole owner of said note and did not allege the method by which he obtained the ownerhip or possession thereof, and as against a general demurrer, the petition was good. We are further of the opinion that appellant bank, by having filed its cross-action in which...