"Conclusions of Fact.
"1. I find that J. J. Cruse is the common source of title between plaintiffs and defendants; that said J. J. Cruse conveyed the property in question by general warranty deed, dated April 5, 1929, to defendants David B. Gillis and wife, Ann Elizabeth Gillis, and as part of the purchase price of said property said Cruse took a note of even date with the said deed, executed by David B. Gillis and wife, Ann Elizabeth Gillis, in the principal sum of $1,750.00, payable to the order of plaintiffs, S. E. Fakes and D. A. Fakes, three years after date, said plaintiffs having loaned said Gillis and wife the said sum; that as a further part of the purchase price of said property said Cruse took another note of even date with said deed, executed by David B. Gillis and wife, Ann Elizabeth Gillis, in the principal sum of $1,250.00, payable to the order of J. J. Cruse in monthly installments of $30.00 per month, beginning thirty days after date, said note providing for interest at the rate of eight per cent per annum, the interest to be deducted out of the monthly installments and the balance applied on principal; that in said deed vendor's liens were retained to secure said notes, the lien securing the $1,750.00 note being expressly made superior to the $1,250.00 note; and as additional security for said $1,750.00 note David B. Gillis and wife, Ann Elizabeth Gillis, executed a deed of trust to M. G. Fakes, Trustee, for the benefit of plaintiffs S. E. Fakes and D. A. Fakes, and as additional security for the $1,250.00 note David B. Gillis and wife, Ann Elizabeth Gillis, executed another deed of trust to M. G. Fakes, Trustee, for the benefit of J. J. Cruse or subsequent holders of said note.
"2. I find that said $1,750.00 note was never renewed or extended by David B
Gillis and wife, Ann Elizabeth Gillis, the makers thereof, or by any one else, and that same matured on April 5, 1932, but that said S. E. Fakes and D. A. Fakes, the holders and owners of said note, did not take any action thereon until more than four years after maturity of said note, towit: on July 7, 1936, and September 1, 1936, when said M. G. Fakes, Trustee in said deed of trust securing said note, purported to make sales of the property in question to plaintiffs S. E. Fakes and D. A. Fakes under the alleged power conferred in said deed of trust.
"3. I further find, in this connection, that up to the time of four years after the maturity date of said $1,750.00 note, towit: on April 5, 1936, plaintiffs S. E. Fakes and D. A. Fakes had made no advancements for taxes or insurance as permitted in said deed of trust and at that time the only indebtedness which said deed of trust secured was the afore-mentioned $1,750.00.
"4. I find that taxes in the sum of $191.05 were paid on said property by plaintiffs S. E. Fakes and D. A. Fakes on July 2, 1936, without the consent or permission of any of the defendants herein and that plaintiffs in paying said taxes aforesaid were mere volunteers.
"5. I find that defendant Vivian Vilven purchased the aforementioned $1,250.00 note, and all liens securing same, from J. J. Cruse with funds of her separate property and estate.
"6. I find that defendant Vivian Vilven took a quit-claim deed to the said property, dated April 17, 1936, from defendants David B. Gillis and wife, Ann Elizabeth Gillis, in cancellation of said $1,250.00 note held by her and that said property is the separate property and estate of said Vivian Vilven.
"7. I find that plaintiffs S. E. Fakes and D. A. Fakes have never been in possession of the premises in question and that defendant Vivian Vilven, at the time of the filing of this suit and long prior thereto, has been in possession of said premises.
"8. I find that the aforementioned $1,750.00 note held by plaintiffs herein, which matured on April 5, 1932, has never been renewed or extended by any of the defendants to this suit or by any one else nor has the justness of the debt evidenced by said note been acknowledged in writing by any of the defendants herein or any one else.
"9. I find that about a year after the sale of the property in question to the defendants Gillis the defendant S. M. Vilven told plaintiffs' representative, M. G. Fakes, that he had previously taken a quit-claim deed to the property in question from David B. Gillis and wife, Ann Elizabeth Gillis, but I further find as a fact that no such deed was ever given and that the only deed given by said David B. Gillis and wife, Ann Elizabeth Gillis, was the said deed dated April 17, 1936, to defendant Vivian Vilven.
"10. I find that at the time of the afore-mentioned conversation defendant S. M. Vilven told plaintiffs' representative, M. G. Fakes, that he had taken over the property in question and orally agreed to account to said M. G. Fakes for the net revenue from said property and apply same on the interest accruing on the $1,750.00 note held by plaintiffs, but in this connection I find that there was no agreement to waive the statute of limitations, and that S. M. Vilven never requested said M. G. Fakes to withhold foreclosure proceedings, or to waive any rights under said note and deed of trust securing same. I further find that M. G. Fakes, plaintiffs' representative, did not agree to waive any rights under the $1,750.00 vendor lien note and the deed of trust securing same and that, at all times material hereto, said M. G. Fakes, plaintiffs' representative, relied on said vendor lien note and deed of trust securing same, and waived no rights thereunder.
"11. I find that the defendants Vivian Vilven, David B. Gillis and wife, Ann Elizabeth Gillis, had no agreement whatsoever with plaintiffs S. E. Fakes and D. A. Fakes, or their representative, M. G. Fakes, in regard to the property in question.
"12. I find that plaintiffs' representative, M. G. Fakes, thought the $1,750.00 note held by plaintiffs S. E. Fakes and D. A. Fakes was a four year note instead of a three year note and matured on April 5, 1933, and therefore would not become barred by the four year statute of limitation until April 5, 1937.
"13. I find that plaintiffs S. E. Fakes and D. A. Fakes did not elect to stand on any superior title, if any they had, but elected to foreclose under the deed of trust aforementioned securing their note by trustee's sales held on July 7, 1936, and September 1, 1936.
"14. I find that this suit was instituted by plaintiffs on September 4, 1936.
"Conclusions of Law.
"I conclude from the above facts and the testimony introduced herein that plaintiffs' aforementioned $1,750.00 note and all liens securing same were barred by the four year statute of limitation at the time of the trustee's sales aforesaid and passed no title to the purchasers at said sales; that defendants David B. Gillis and wife, Ann Elizabeth Gillis, and S. M. Vilven and wife, Vivian Vilven, are entitled to plead the four year statute of limitation as against plaintiffs' aforementioned note and all liens securing same; that no trust was created herein; that the oral agreement between M. G. Fakes and S. M. Vilven is without consideration and is in violation of the statute of frauds; and that plaintiffs S. E. Fakes and D. A. Fakes should take nothing by their action herein against any of the defendants.
"Norman Atkinson
"Judge District Court, Harris County
Texas, 11th Judicial District."
