Clem v. Evans

• Decision Date: 22 May 1926
• Docket Number: (No. 9650.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 286 S.W. 273
• Parties: CLEM v. EVANS.
• Court: Texas Court of Appeals

Page 273

286 S.W. 273

CLEM v. EVANS.

(No. 9650.)^*

Court of Civil Appeals of Texas. Dallas.

May 22, 1926.

Rehearing Denied June 26, 1926.

Appeal from District Court, Dallas County; Claude M. McCallum, Judge.

Suit by T. L. Evans against C. W. McBride and another, to which R. H. Clem was made defendant. Judgment for plaintiff, and defendant R. H. Clem appeals. Affirmed.

Thomas, Frank, Milam & Touchstone and Burgess, Owsley, Storey & Stewart, all of Dallas, for appellant.

Whitehurst & Whitehurst, of Dallas, for appellee.

JONES, C. J.

This appeal is perfected by R. H. Clem, appellant, from a judgment in the district court of Dallas county, Tex., in which T. L. Evans, one of the appellees, was awarded judgment against appellee C. W. McBride on the amount of two vendor's lien notes and a foreclosure of the vendor's lien on lots 7 and 8, in block 15, Trinity Heights addition No. 2 to the city of Dallas, and in which a subordination agreement executed by T. L. Evans, appellee, purporting to subordinate the vendor's lien on each lot to a mechanic's lien on each lot in favor of appellant, was canceled. McBride did not appeal, and T. L. Evans will be referred to as appellee.

In July, 1923, appellee joined by his wife, executed two deeds to McBride and wife, conveying to them, respectively, said lot 7 and lot 8. The consideration for lot 7 was the payment of $100 cash and the execution and delivery by the vendees to appellee of one note for $650, payable monthly, and secured by vendor's lien on said lot. The consideration for lot 8 was the payment of $100 cash and the execution of a note for $700, payable to appellee in monthly installments and secured by the vendor's lien on said lot. A subordination agreement was executed in favor of appellant by appellee at the same time the said deeds were executed and the down payment on the lots made. Under the terms of this agreement appellee agreed to subordinate the vendor's lien retained by him to a mechanic's lien to be given by McBride and his wife in favor of R. H. Clem, to secure an indebtedness for the erection of a building on each of said lots. The said indebtedness on each lot to be represented by a note in the principal sum of $2,500, to mature in 60 days, each note to be secured by a deed of trust with R. E. L. Sherrard as trustee. The mechanic's lien and deed of trust were duly executed, and each of the houses were erected by the use of the money thus furnished by appellant. The undisputed evidence shows that appellant furnished the $200 down payments.

In deference to the findings of the jury on the special issues submitted, which findings are supported by evidence, we further find that appellee was induced by McBride and by appellant to sign said subordination agreement under the promise by appellant that after said houses were constructed the two said 60-day notes would be taken up and extended by Clem for a period of time from three to five years; that in executing said subordination agreement appellee relied upon this promise and would not have executed said agreement but for said promise; that this promise was not fulfilled, and appellant had asserted his right, after maturity of said notes, to have the said trustees sell said lots by virtue of the power given in the said deed of trust.

McBride defaulted in the monthly payments of each of said vendor's lien notes, and appellee exercised his option to declare each of said notes due, and brought suit against the McBrides to recover the principal, interest, and attorney's fees on each of said notes, and to foreclose the vendor's lien. To this suit appellant was made a party defendant, and a cancellation of the subordination agreement in favor of appellant's said lien was sought on the alleged ground of fraud in procuring it. The fraud alleged was to the effect that appellee was induced to execute said subordination agreement on the promise made both by McBride and appellant that the indebtedness secured by the mechanic's liens would be extended from three to five years; that he relied on such promises, and would not have executed said agreement unless same had been made; that said extension was not made, and appellant and McBride had refused to make same.

The case was tried to a jury. The evidence as to whether the alleged promise had been made was in sharp conflict, but, the jury having resolved this conflicting evidence in favor of appellee, this court will not disturb such finding.

There are numerous assignments of error presenting the controlling issue of this appeal, as to whether the subordination...