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

15 S.W.2d 604

ELSBY v. LUNA et ux.

(No. 1221-5237.)

Commission of Appeals of Texas, Section A.

April 10, 1929.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Suit by S. J. Elsby against W. B. Luna and wife. Judgment adverse to defendants was reversed by the Court of Civil Appeals [6 S. W.(2d) 375], and plaintiff brings error. Judgment of Court of Civil Appeals reversed, and that of district court affirmed.

Brown, Ballowe & King, of Dallas, for plaintiff in error.

W. B. Harrell, of Dallas, for defendants in error.

CRITZ, J.

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:

"I received your letter of October 27th, which has reference to my note which has been sent to the City National Bank for collection. In this connection I am sorry to say that it is not possible for me to take up the note, or make a substantial payment on it at this date. I have continually refrained from writing, thinking each week and month, that I would be able to make a satisfactory payment, but so far have not been able to do it. I should regret very much to have you place this note in the hands of an attorney for collection, etc. * * * I am asking that you defer action as to an attorney and have the note returned to you."

Letter of date January 29, 1923:

"Receipt is acknowledged of your letter of January 17th, and in reply I am forwarding herewith my check for $100.00 on American Exchange National Bank, dated February 8, 1923 * * * I was hoping that you would have had business in Dallas before this, as I should like to have a personal talk with you. Many things could be more readily explained."

Letter of date September 10, 1923:

"Receipt is acknowledged of your letter of July 21st, which has had my careful consideration. I am pleased to advise you that the matter referred to therein will have my attention about ...