Columbia Ave. Saving Fund, Safe-Deposit, Title & Trust Co. v. Strawn
| Decision Date | 26 October 1899 |
| Citation | 53 S.W. 342 |
| Parties | COLUMBIA AVE. SAVING FUND, SAFE-DEPOSIT, TITLE & TRUST CO. v. STRAWN. |
| Court | Texas Supreme Court |
Suit by J. E. Strawn against the Columbia Avenue Saving Fund, Safe-Deposit, Title & Trust Company and another. A judgment for plaintiff was affirmed by the court of civil appeals, and defendant company brings error. Reversed.
Harris, Etheridge & Knight, for plaintiff in error. Philip Lindsley, for defendant in error.
Bassett purchased a tract of land, executing for the purchase money three promissory notes maturing at different times. Strawn became the owner of two of the notes, and the Columbia Avenue Saving Fund, Safe-Deposit, Title & Trust Company, plaintiff in error, became the owner of the other. Strawn sued Bassett and the plaintiff in error, and other persons not now before the court, to recover of Bassett the amount due upon the two notes, and against plaintiff in error for a foreclosure of the lien. Plaintiff in error, in its answer, declared upon the note held by it, and also sought a foreclosure of the vendor's lien. Four years having elapsed between the maturity of this note and the filing of the suit, the plaintiff, Strawn, pleaded the statute of limitations in bar of the relief sought by plaintiff in error. Bassett made no defense. The district court and the court of civil appeals sustained the plea of limitation, allowing a foreclosure in favor of Strawn, but denied a foreclosure in favor of plaintiff in error, giving it only a personal judgment against Bassett. The question is thus presented whether or not, there being no plea by Bassett, Strawn should have been allowed to set up limitation against the holder of the other note. We are of opinion that this question should be decided in the negative, and that the judgments of the district court and of the court of civil appeals were erroneous. The notes, when executed, carried equal liens upon the property, as well as personal liability on the part of their maker. The purchasers of the notes acquired equally the right to a judgment against the maker of the notes and to a lien upon the property to secure their payment, and this was the extent of their rights growing out of the original transactions. Nothing has since occurred to invest either of such holders with any other or superior right. Neither of them stands in the shoes of Bassett, no transaction having taken place by which...
To continue reading
Request your trial
-
Miller, Hiersche, Martens & Hayward, P.C. v. Bent Tree Nat. Bank
...historically the defense of limitations may not be interposed by one not in the position of the debtor. Columbia Ave. Sav. Fund v. Strawn, 93 Tex. 48, 53 S.W. 342, 342-43 (1899). The defense is a personal privilege which may be asserted or waived at the election of the debtor or those in pr......
-
Kiel v. Staber, 4883.
...had no right to invoke limitation as against the superior lien, even if it had not been renewed and extended. Columbia Ave. Sav. Fund, etc., Co. v. Strawn, 93 Tex. 48, 53 S.W. 342. We overrule appellant's assignments and propositions raising the question discussed. In our opinion appellant ......
-
Buss v. Kemp Lumber Co.
...Co., 14 N. D. 147, 103 N. W. 915, 919, 70 L. R. A 814, 116 Am. St. Rep. 642, 8 Ann. Cas. 1160. On the contrary, in Columbia Ave., etc., Co. v. Strawn, 93 Tex. 48, 53 S. W. 342, it was held that the holder of a vendor's lien could not plead the statute of limitations in an action by the hold......
-
Abendschein v. GE Capital Mortgage Services, Inc., No. 10-06-00247-CV (Tex. App. 12/12/2007)
...rule, . . . the defense of limitation may not be interposed by one not in the position of the debtor. Columbia Ave. Saving Fund, etc. v. Strawn (1899), 93 Tex. 48, 53 S.W. 342; and is a personal privilege which may be asserted or waived at the election of the debtor or those in privity. Cas......