Emerson v. Mills

• Decision Date: 16 February 1892
• Citation: 18 S.W. 805
• Parties: EMERSON v. MILLS <I>et al.</I>
• Court: Texas Supreme Court

18 S.W. 805

EMERSON v. MILLS et al.

Supreme Court of Texas.

February 16, 1892.

Commissioners' decision. Section B. Appeal from district court, Dallas county.

Action upon a promissory note by Ella W. Mills and others against S. P. Emerson. Plaintiffs obtained judgment, and defendant appeals. Reversed.

Cobb & Avery, for appellant.

GARRETT, P. J.

Suit was upon a promissory note executed by the appellant for land. February 17, 1880, one E. H. Wilson conveyed to the appellant, S. P. Emerson, a tract of land containing 680 acres, for which Emerson paid Wilson $3,000 in cash, and executed to him his three notes for $2,000 each, due one, two, and three years after date. At the time of the sale the parties knew that the title to 40 acres of the land was in doubt, but supposed it could be perfected, and Wilson conveyed the entire tract by a deed with covenants of general warranty. All of the purchase money was paid as it matured, until the last note, which fell due February 17, 1883. In the mean time E. H. Wilson had died, and the appellees became the owners of the note as heirs and legatees. When this last note was about to mature, it was sent to Adams & Leonard, bankers at Dallas, for collection, by J. T. Wilson, one of the plaintiffs, who was then residing in New Orleans, La. The other plaintiffs, Ella W. Mills and her husband, J. P. Mills, Sallie C. Head, and her husband, H. O. Head, and A. S. J. Wilson, were residing in Grayson county, Tex. Emerson wrote to J. T. Wilson at New Orleans, and required some arrangement to be made about the 40 acres in dispute before he would agree to pay the note. The trouble about the 40 acres was that it was claimed to be vacant land, and had been located by one Thomas, but was in the possession of E. H. Wilson at the time he sold it, and remained in the possession of Emerson afterwards. At the request of the other plaintiffs, the appellee Sidney Wilson went to Dallas to see Emerson about the payment of the note, and an arrangement was effected by which the note was all paid except the proportional amount of the purchase money for the 40 acres. Emerson contends that the agreement between him and Sidney Wilson was that, as the title had failed to the 40 acres, the note was to be credited with an amount equal to the purchase price thereof at the rate per acre for which the entire tract was sold, and that that amount was never to be paid at all; and that he might buy in the title of Thomas for whatever he could. If his contention is true, the plaintiffs were not entitled to recover. Appellees contend that the payment as to the 40 acres was only deferred until they could see better what to do, expecting the statute of limitations would cure the defect in the title. At the time of the agreement Emerson paid $1,000, and within less than two months afterwards paid the entire balance, except as to the 40 acres, when Adams & Leonard surrendered the note to him, with the understanding that it had been discharged in full. Appellees, contending that Adams & Leonard held the note for collection only, and had no authority to surrender it to Emerson except on payment of the full amount thereof, brought this suit February 16, 1887, charged Emerson with the possession of the note, notified him to produce the same, and prayed judgment for the balance thereon. The title to the 40 acres had in fact failed, and defendant bought it in from Thomas for the sum of $272, on December 24, 1885. When the case was called for trial, January 16, 1890, the defendant made an application for continuance, which was overruled; and trial was had before a jury, and resulted in a verdict and judgment for the plaintiffs for the sum of...