Curtis v. Speck, 10772.

• Decision Date: 18 May 1939
• Docket Number: No. 10772.,10772.
• Parties: CURTIS et ux. v. SPECK et al.
• Court: Texas Court of Appeals

Page 348

130 S.W.2d 348

CURTIS et ux. v. SPECK et al.

No. 10772.

Court of Civil Appeals of Texas. Galveston.

May 18, 1939.

Rehearing Denied June 28, 1939.

Error from District Court, Harris County; Ben F. Wilson, Judge.

Suit by B. J. Speck against H. E. Curtis and others for foreclosure of a deed of trust and vendor's liens retained to secure payment of the second of a series of two vendor's lien notes, wherein a cross petition was filed. To review an unsatisfactory judgment, H. E. Curtis and wife bring error.

Affirmed in part, and reversed and remanded in part.

H. J. Hendrix and Geo. W. Dixon, both of Houston, for plaintiffs in error.

McFarlane & Dillard and Thos. W. Blake, Jr., all of Houston, for defendant in error Dr. B. J. Speck.

Bailey & Blum, of Houston, for defendant in error F. C. Jackson.

MONTEITH, Chief Justice.

This is an appeal by writ of error from a judgment of the district court of Harris County in an action brought by defendant in error, B. J. Speck, plaintiff below, against plaintiff in error, H. E. Curtis, and defendant in error and cross-plaintiff, F. C. Jackson and Benjamin A. Denny, Executor of the Estate of Mary B. Jackson, for foreclosure of a deed of trust and vendor's liens retained to secure the payment of the second of a series of two vendor's lien notes outstanding against a tract of approximately 12½ acres of land out of Lots 8 and 9 in the C. W. Lindsey Subdivision of 247.2 acres out of the west part of Section 19, Block 4, Washington County R. R. Survey in Harris County, Texas.

The parties will be designated in this opinion as in the trial court.

Plaintiff filed this action for the recovery of the balance due on note No. 2 of said series. He pled in the alternative that on April 30, 1934, he had entered into an agreement with defendant for the renewal and extension of said note for a period of two years from that date.

Cross-plaintiff prayed for foreclosure of note No. 1 of said series of notes and joined plaintiff in his prayer for relief.

Defendant, joined by his wife, Mrs. H. E. Curtis, answered both plaintiff and cross-plaintiff by general demurrer and general and special denials. By a special plea he alleged the invalidity of both of said notes on the ground that he and his wife, since the purchase of said property had occupied it as their homestead. He alleged further that both of said notes were barred by limitation on various grounds.

In answer to defendant's plea of limitation, cross-plaintiff answered setting up a new cause of action based on an instrument in writing acknowledging the existence of said debt and the justice thereof, sufficient to renew and extend the note and to take it from the operation of the statutes of limitation, to which pleading defendant interposed a plea of non est factum and fraud on the part of the cross-plaintiff in securing the execution of said instrument.

At the conclusion of the testimony and after all parties had rested their causes, plaintiff and cross-plaintiff filed motions for an instructed verdict, which were granted. On said instructed verdict the court rendered judgment in favor of plaintiff, B. J. Speck, in the sum of $931.71, and in favor of cross-plaintiff, F. C. Jackson, for $2280.86, with foreclosure of said deed of trust and vendor's liens, and for a pro rata distribution of the proceeds of the sale of said property to plaintiff and cross-plaintiff in the proportion that the amount of each of their judgments therein recovered bore to each other, the surplus, if any remaining after the satisfaction of the amounts recovered, to be paid to the defendants.

Defendant and cross-defendant, Mrs. H. E. Curtis, base their appeal on alleged fundamental errors of the trial court in instructing the jury to return a verdict in favor of plaintiff and cross-plaintiff and in entering judgment based on said verdict.

On April 8, 1925, plaintiff conveyed the land in question to defendant. As a part of the consideration therefor defendant executed and delivered to plaintiff his two certain promissory notes of respectively $1500, due on January 1, 1932, and $1924.42, payable, principal and interest, in monthly installments of $31 each. The notes sued on and said deed and deed of trust each recite that said notes are secured by a vendor's lien on the land in question. Note No. 1 was assigned by plaintiff to Mary D. Jackson, wife of cross-plaintiff, who died intestate prior to the filing of this suit, leaving cross-plaintiff her sole heir at law.

In plaintiff's original petition the amount claimed to be due on said note No. 2 was left blank at the time of the filing of the suit, but was filled in later by plaintiff's attorney. Both notes, however, were copied verbatim in plaintiff's petition and a copy of the deed of trust was attached to said pleadings as an exhibit. No exception was leveled at such pleading on the ground that it had been improperly amended, and no motion was made to strike the pleading on this ground. Plaintiff's original petition was filed prior to the maturity date of the last installment due on Note No. 2.

The record shows that plaintiff's original petition was filed on December 27, 1935. Defendant was served with citation on March 26, 1936. There is no showing in the record as to the cause of the delay in the issuance of said process.

Cross-plaintiff's original answer to plaintiff's petition and cross-action for foreclosure as against defendant of Note No. 1 for $1500 was filed on April 22, 1936. Said Note No. 1 became due and payable on January 1, 1932.

Defendant contends that since the property in question was occupied by him as a homestead, under a contract of sale prior to its actual purchase and prior to the execution of the purchase money notes sought to be foreclosed, that he had acquired a homestead right therein superior to the vendor's and deed of trust liens retained to secure the payment of said notes. We cannot sustain this contention. The rule has been definitely established in this state that until the purchase money for property is paid, the purchaser has no such interest therein as will support the homestead right against the person to whom such purchase money is due. 22 Tex.Jur. page 296. It is further the established law in this state that where a vendor's lien is retained in the purchase of property the homestead plea is inadmissible in the absence of pleadings under oath that the recitations in reference to said lien were induced through fraud or mistake.

This rule has been recently reaffirmed by the Supreme Court in the case of Gregory v. Ward, 118 Tex. 526, 18 S.W.2d 1049, wherein it was held that evidence from the probate records showing that property was a homestead was not admissible in a suit to enforce a vendor's lien.

We are further unable to sustain defendant's assignment of error to the failure to make Mrs. H. E. Curtis, the wife of defendant, a party to this suit to foreclose a vendor's lien against the property in question claimed by defendant and his wife as a homestead. This question is definitely settled by the opinion in the case of Ohmart v. Highbarger, Tex.Civ.App., 43 S.W.2d 975, which holds that such a suit may be maintained against the husband alone and without the joinder of the wife. This rule applies equally to the joinder of the wife in a suit brought for the purpose of foreclosing a deed of trust lien. Waldon v. Davis, Tex.Civ.App., 185 S.W. 1000, 22 Tex.Jur., page 297.

Defendant contends that installment note No. 2 was barred by the four years' statute of limitation by virtue of the fact that he had, on several occasions, made default in the payment of installments due thereon.

The record fails to disclose any evidence that plaintiff made demand for the entire balance due...