Elsby v. Luna
Decision Date | 10 April 1929 |
Docket Number | (No. 1221-5237.) |
Citation | 15 S.W.2d 604 |
Parties | ELSBY v. LUNA et ux. |
Court | Texas Supreme Court |
Brown, Ballowe & King, of Dallas, for plaintiff in error.
W. B. Harrell, of Dallas, for defendants in error.
This suit was filed in the district court of Dallas county by S. J. Elsby, plaintiff in error, against W. B. Luna et ux., defendants in error, as an action for debt. The debt sued on is evidenced by a promissory note dated October 22, 1914, for $3,000, executed by W. B. Luna and wife, and payable to Elsby, due one year after date, with 8 per cent. interest per annum and providing for 10 per cent. attorney's fees. Said note was secured by a deed of trust upon certain real estate in Dallas, Tex. While admitting the original note to be barred by the statute of limitation on its face, the plaintiff set up and pleaded certain letters hereafter quoted written by W. B. Luna to Elsby, whereby he contended the running of the statute of limitation was prevented, and said letters were declared on in the suit.
W. B. Luna and wife raised the issue of limitation by special exception and plea, and defended against a foreclosure of the deed of trust lien on the real property, involved on the ground that said letters declared upon by the plaintiff were neither acknowledged nor recorded as provided by the 1913 registration statutes relative to real estate notes. This suit is between the original parties, no third party being interested; therefore the last-mentioned ground of defense is so well settled against defendants that we do not deem it necessary to further consider it.
Trial in the district court before the court without a jury resulted in a judgment for plaintiff against W. B. Luna for the debt sued for, and against said Luna and wife foreclosing the deed of trust lien. This judgment was appealed from by Luna and wife to the Court of Civil Appeals for the Fifth District at Dallas, which court reversed the judgment of the district court and rendered judgment for Luna and wife. 6 S.W.(2d) 375. The case is now before the Supreme Court on writ of error granted on application of Elsby.
As shown by the record, after the note sued on was undoubtedly barred by the statute of limitation, Luna wrote Elsby several letters, all being written in direct answer to letters written to him by said Elsby requesting payment of the note; the salient parts of the letters written to Elsby by W. B. Luna being as follows:
Letter of date November 8, 1922:
Letter of date January 29, 1923:
Letter of date September 10, 1923:
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