Citizens' Nat. Bank v. Graham

• Decision Date: 28 March 1928
• Docket Number: (No. 4160.)
• Citation: 4 S.W.2d 541
• Parties: CITIZENS' NAT. BANK OF HILLSBORO v. GRAHAM.
• Court: Texas Supreme Court

Page 541

4 S.W.2d 541

CITIZENS' NAT. BANK OF HILLSBORO v. GRAHAM.

(No. 4160.)

Supreme Court of Texas.

March 28, 1928.

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

Suit by the Citizens' National Bank of Hillsboro against Tom Graham. Judgment for plaintiff was reformed and affirmed by the Court of Civil Appeals (258 S. W. 1103), and plaintiff brings error. Judgment of Court of Civil Appeals reversed and that of the district court affirmed after case was withdrawn, on motion for rehearing, from Commission of Appeals, whose opinion is reported in 275 S. W. 997.

Collins, Dupree & Crenshaw, of Hillsboro, for plaintiff in error.

Frazier & Averitte, of Hillsboro, for defendant in error.

PIERSON, J.

On January 28, 1914, plaintiff in error, Citizens' National Bank of Hillsboro, conveyed to defendant in error, Tom Graham, a certain tract of land, and a part of the consideration therefor was evidenced by a series of five notes of even date with said conveyance. The first two notes were paid. The last three became due January 1, 1917, January 1, 1918, and January 1, 1919, respectively. On March 17, 1922, plaintiff in error filed this suit to recover on said three unpaid notes and to foreclose the vendor's lien retained in the notes and in the conveyance of January 28, 1914. The last of the series at the time suit was filed was less than four years past due, but the other two were more than four years past due. A plea of limitations was interposed to said two notes, and tender was made on the last one. The district court denied the plea, and gave judgment for the full amount of all three notes with foreclosure of the lien. The Court of Civil Appeals held that two of the notes were barred by the statute of limitations of four years, and limited the recovery to the last note. 258 S. W. 1103. The application of plaintiff in error for a writ of error was granted, and the case was transferred to Section A of the Commission of Appeals. The Commission reported an opinion prepared by Judge Harvey, and recommended that the judgment of the Court of Civil Appeals be reversed and that of the district court be affirmed, which recommendation was adopted by the court on October 14, 1925, and is to be found in 275 S. W. 997. On motion for rehearing, however, the case was withdrawn from the Commission, all previous orders were vacated, and the cause was set down for hearing before the Supreme Court.

The important and controlling question to be decided is the proper construction of article 5694 of the Revised Civil Statutes of 1911, as amended by chapter 123, § 2, of the Legislative Acts of 1913. The article reads as follows:

"The right to recover any real estate by virtue of a superior title retained in any deed of conveyance heretofore or hereafter executed, or in any vendor's lien note or notes heretofore or hereafter executed, given for the purchase money of such real estate, shall be barred after the expiration of four years from the maturity of such indebtedness, and if suit is not brought for recovery of such real estate, or for the foreclosure of the lien to secure such note or notes within four years from the date of the maturity of such indebtedness, or if suit is not brought within such time for the recovery of the land by the original vendor, or his transferee, or for the foreclosure of the lien given to secure such notes, the purchase money therefor shall be conclusively presumed to have been paid in any suit to recover such land or to enforce a lien thereon, and the lien reserved in any such notes and deeds conveying the land shall cease to exist four years after the note or notes have matured, provided the lien reserved in such note or notes may be...