Ellwood v. Lancaster, 5367.
| Decision Date | 08 December 1941 |
| Docket Number | No. 5367.,5367. |
| Citation | 157 S.W.2d 973 |
| Parties | ELLWOOD et al. v. LANCASTER. |
| Court | Texas Court of Appeals |
Appeal from District Court, Lubbock County; E. L. Pitts, Judge.
Suit by E. P. Ellwood, individually and as sole surviving trustee and independent executor of the estate of I. L. Ellwood, deceased, against R. N. Lancaster on promissory notes, wherein defendant filed cross-action for cancellation of notes. From a judgment for defendant, plaintiff appeals.
Affirmed.
Randal & Kilpatrick, of Lubbock, for appellant.
Vickers & Campbell and Elkins & Elkins, all of Lubbock, for appellee.
The plaintiff, E. P. Ellwood, individually, as sole surviving trustee and independent executor of the estate of I. L. Ellwood, deceased, instituted this suit in the District Court of Lubbock County against the defendant, R. N. Lancaster, on 11 promissory notes dated June 26, 1934 and payable to the estate of I. L. Ellwood. Note No. 1 was for $515 due December 1, 1934 on which had been paid $240.39, and 10 notes each for the sum of $212 payable one on December 1, 1935 and one on December 1st each year thereafter until said notes were fully paid.
The plaintiff alleged he was the owner of the notes; that each of said notes provided for interest at the rate of 6% per annum and 10% attorney's fees if placed in the hands of an attorney for collection; that defendant had defaulted and the prayer was for judgment for the principal, interest, attorney's fees and costs of suit.
The defendant urged a special exception to plaintiff's right to recover on the note for $515 due December 1, 1934 and one note for $212 due December 1, 1935 because said notes were barred by the statute of four year limitation. Article 5527, Vernon's Annotated Civil Statutes of Texas. He pleaded as a defense that in 1924 he purchased from plaintiff the West Half of Section 32, Block 1 in Lamb County, Texas, and executed in part payment therefor certain vendor's lien notes; that in 1934 at the request and with the assistance of plaintiff he applied to the Federal Land Bank and the Land Bank Commissioner of Houston, Texas, for, and obtained a loan for $6,400 which plaintiff agreed and contracted with said bank and the bank commissioner to accept in full payment of the vendor's lien notes he held against the defendant; that the notes sued upon were given for the difference between the amount of the loan advanced by the banking commissioner and the amount of defendant's debt to plaintiff evidenced by the notes and certain delinquent taxes; that the notes sued on were illegal, contrary to public policy and in violation of the provisions of the Emergency Farm Mortgage Act, 48 Stat. 41, and the amendments thereto and by cross-action sought a decree cancelling such notes.
The court on the admission of plaintiff that Note No. 1 for $515 due December 1, 1934 and the note for $212 due December 1, 1935 were barred by limitation as urged by defendant, sustained the exception urging the four year statute of limitation to said notes and they were thereby eliminated as a ground of recovery. This $515 note was for taxes paid by plaintiff.
The case was tried before the court without the intervention of a jury and judgment rendered that plaintiff take nothing by his suit and that defendant recover on his cross-action for the cancellation of the notes sued on.
The record shows that on December 8, 1924 the plaintiff sold and conveyed to the defendant the half section of land above described for a consideration of $12,405. The defendant paid the sum of $1,654 in cash and executed and delivered vendor's lien notes for $10,751 which constituted the balance of the consideration he was to pay for the land.
In 1934 the plaintiff induced the defendant who was in default to apply for a loan through the Federal Land Bank of Houston and the Land Bank Commissioner to take up and extend the indebtedness evidenced by the vendor's lien notes executed to plaintiff by the defendant, the balance of which was approximately $10,600. Defendant with the assistance of the plaintiff secured a loan from the bank and the bank commissioner for the sum of $6,400. On June 21, 1934 the plaintiff advised the defendant by letter that:
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