Dodge v. Signor

• Decision Date: 29 January 1898
• Citation: 44 S.W. 926
• Parties: DODGE v. SIGNOR et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

44 S.W. 926

DODGE v. SIGNOR et al.¹

Court of Civil Appeals of Texas.

January 29, 1898.

Appeal from district court, Hardeman county; G. A. Brown, Judge.

Action by G. M. Dodge against E. H. Signor and another on notes and to foreclose a vendor's lien. Judgment for defendants. Plaintiff appeals. Affirmed.

Duncan G. Smith, for appellant. John J. King, B. E. Green, and J. M. Standlee, for appellees.

TARLTON, C. J.

As the payee of two promissory notes executed by the appellees, E. H. and G. W. Signor, bearing date November 26, 1889, each in the principal sum of $800, and secured by a vendor's lien on certain realty in Quanah, Tex., the appellant brought this suit against the makers, the appellees herein. The notes, according to their terms, matured, respectively, on November 26, 1890, and November 26, 1891. Contemporaneously with the execution of the notes by the appellees, the appellant executed to them a deed to the land referred to in the notes, reciting the retaining of the vendor's lien, and "that, upon default in the payment of any one of said notes when it shall become due and payable by the terms thereof, then, and in that event, all of said notes remaining unpaid at the date of such default shall mature and become due and payable by reason thereof." Neither of the notes was paid when by its terms it became due, the first and only payment of $586 being made on December 1, 1890. This suit was instituted on September 5, 1895. In our opinion, the trial court correctly sustained the plea of four years' limitation, holding that the notes and the deed constituted, in effect, but a single instrument (McKelvain v. Allen, 58 Tex. 383); that, so reading them, the failure to pay the first note at its maturity, perforce of the recital in the deed, matured both notes, so that the cause of action accrued on the date of the maturity of the first note, more than four years prior to the institution of the suit. Machine Works v. Reigor, 64 Tex. 89. The appellant's brief suggests the contention that the plea of limitation should not avail the defendants, because of their absence from the state. The makers of the notes testified unequivocally that they have never been residents or citizens of Texas. We find no evidence which tends to conflict with their statements. The recitals in the deed from the appellant to them describing them as "E. H. Signor and G. W. Signor, of the county of Hardeman, state of Texas," and of a deed by them to one Richardson, through...