Cobb-Holman Lumber Co. v. Liechty, 9362.

• Court: Texas Court of Appeals
• Writing for the Court: Graves
• Citation: Cobb-Holman Lumber Co. v. Liechty, 30 S.W.2d 356 (Tex. App. 1930)
• Decision Date: 05 June 1930
• Docket Number: No. 9362.,9362.
• Parties: COBB-HOLMAN LUMBER CO. v. LIECHTY et al.<SMALL><SUP>*</SUP></SMALL>

30 S.W.2d 356

COBB-HOLMAN LUMBER CO. v. LIECHTY et al.^*

No. 9362.

Court of Civil Appeals of Texas. Galveston.

June 5, 1930.

Rehearing Denied June 26, 1930.

Appeal from District Court, Anderson County; Ben F. Dent, Judge.

Action by the Cobb-Holman Lumber Company against Mrs. Cora A. Liechty and others. From a judgment for defendant, plaintiff appeals.

Affirmed.

G. W. Gibson, of Jacksonville, and Smithdeal, Shook, Spence & Bowyer, of Dallas, for appellant.

W. H. Flippen and John T. Gano, both of Dallas, for appellees.

GRAVES, J.

This statement acquiesced in by the appellees as being substantially correct is taken— with a single interlineation added—from appellant's brief.

"This suit was instituted by Cobb-Holman Lumber Company, a private corporation, against Cora A. Liechty and her husband, L. E. Liechty, Currie McCutcheon, J. W. Mott, R. L. McInnes, and Claud C. Westerfield, of Dallas County, Texas; M. A. Davey, of Anderson County, Texas, and Humble Oil and Refining Company, of Harris County, Texas, seeking to obtain a judgment on a vendor's lien note and to foreclose a lien on certain described property. McCutcheon and Westerfield went out of the suit on disclaimer. The case was tried before a jury, and was submitted upon one single special issue. The material part of the pleadings of the defendants Liechty is contained in section VI of their First Amended Original Answer and Cross Action, which reads as follows:

"`Said defendants, without waiving any of the above, but still insisting upon same, come now and especially allege and show that heretofore the former owners of the real estate and land described in plaintiff's petition conveyed to the plaintiff, Cobb-Holman Lumber Company, certain timber rights thereon for and in consideration of the said Cobb-Holman Lumber Company purchasing the note sued upon herein and marking same paid and cancelled. That said Cobb-Holman Lumber Company under said conveyances were in possession of said timber rights so conveyed to them, and thereafter sold said timber rights to third parties for a consideration far in excess of the amount of the note sued upon herein; that the said Cobb-Holman Lumber Company thereby accepted and completed said transaction and received more than valuable consideration therefor, and said note sued upon herein thereupon became duly paid off, discharged and cancelled and the lien securing same against the property described in said petition thereby became duly cancelled and released.'

"They further plead limitation, and that no extensions or assumptions of the note or lien sued on were binding on them, but were within the statute of frauds and void.

"The material part of the deed from Griffith to Cobb-Holman Lumber Company reads as follows:

"`Know all men by these presents: That I, Col. George Griffith, of the County of Dallas, State of Texas, but now temporarily in Cherokee County, Texas, for and in consideration of the sum of Five Hundred Dollars cash to me in hand paid by Cobb-Holman Lumber Company, of Jacksonville, Texas, the receipt of which is hereby acknowledged, and the further consideration of the assumption and agreement to pay by said Cobb-Holman Lumber Company, one vendor's lien note on the land hereinafter described for the principal sum of Seventy-five Hundred Dollars, which note now amounts to the sum of Six Thousand Dollars and accrued interest; said note having been executed and delivered by Frank Schultz and wife to L. O. Herrington, and now owned and held by Dr. Hackler, of Dallas, Texas, and which note has been placed in the hands of C. L. Allen, Esq., for collection. It being agreed and understood that said Cobb-Holman Lumber Company is to pay the accrued interest on said note up to date, and whatever attorney's fees due thereon, and that the said note is to be assigned in writing from said Dr. Hackler to Cobb-Holman Lumber Company, without recourse on said Dr. Hackler. And it is further agreed and understood that said Cobb-Holman Lumber Company are to carry said note for a period of two years from date hereof at the agreed rate of six per cent interest from this date, and one additional year at the rate of seven per cent per annum, providing said grantor herein, Col. George Griffith, pays the taxes on said land each of said years, and all back taxes on said land, and pays the interest on said note annually from date hereof. And in the event that said note should about to become past due for four years, that said Col. Griffith will execute a renewal agreement with said Cobb-Holman Lumber Company, its successors or assigns, prior to the expiration of said four years from date of maturity thereof.

"`I, the said Col. George Griffith, do by these presents grant, bargain, sell, release and convey unto the said Cobb-Holman Lumber Company, grantee herein, all of the merchantable timber now lying, standing, and growing upon the following described tracts of land, situated in Anderson County, Texas, to-wit: * * *

"`The above and foregoing described five tracts of land contain twelve hundred twenty-two acres (1222), more or less, and it is understood that if the tracts as described should survey out more than that amount of land, the said timber on the excess is to go to the grantee herein, and if less, said grantee is to lose the shortage.

"`It is agreed and understood that the grantee herein, Cobb-Holman Lumber Company, is to have two years from this date within which to cut and remove the above described timber from the above described tracts of land, provided, however, they shall cut the timber clean as they cut, and not go back and cut over the same land a second time.

"`It is further agreed and understood that the grantee herein, Cobb-Holman Lumber Company, its successors or assigns, shall have the right of ingress and egress over, across and upon said tracts of land, together with such trams, truck, wagons or any other means of conveyance which they may desire to use for the purpose of cutting and removing said timber from said tracts of land and adjoining tracts which they may own or own timber on, during the term of this contract.

"`To Have and To Hold the above described timber, together with all the rights, privileges and appurtenances to the same belonging, to the said grantee, Cobb-Holman Lumber Company, its successors or assigns, for the full term of two years from this date; and I hereby bind myself, my heirs and legal representatives, to warrant and forever...