Farrier v. Hopkins

• Decision Date: 19 January 1938
• Docket Number: No. 2128-7012.,2128-7012.
• Citation: 112 S.W.2d 182
• Parties: FARRIER v. HOPKINS et ux.
• Court: Texas Supreme Court

112 S.W.2d 182

FARRIER v. HOPKINS et ux.

No. 2128-7012.

Commission of Appeals of Texas, Section A.

January 19, 1938.

Certified Questions from Court of Civil Appeals of Sixth Supreme Judicial District.

Action upon vendor's lien notes by Leo Hopkins and wife against W. G. Farrier. From the judgment, W. G. Farrier appealed to the Court of Civil Appeals, which certified questions to the Supreme Court.

Questions answered.

J. A. Ward, of Mt. Pleasant, and Henderson & Bolin and French & French, all of Daingerfield, for appellant.

Thomas W. Thompson, of Greenville, and Wilkinson & Wilkinson, of Mt. Vernon, for appellees.

GERMAN, Commissioner.

We need not copy the certificate of the Court of Civil Appeals in full, but state the substance of same.

On January 31, 1928, Leo Hopkins and wife executed a deed to Jim McCollum conveying a lot of land in the town of Omaha, Tex. The recited consideration was $100 in cash, and the execution by McCollum of six vendor's lien notes, payable to Leo Hopkins, and running over a period of six years. Default having been made in the payment of the last five of said notes, Hopkins and wife instituted this suit thereon against Jim McCollum and also against appellant, W. G. Farrier. In order to hold Farrier liable upon the notes, appellees, Hopkins and wife, alleged and were allowed to prove a parol agreement in substance as follows: That the real agreement of sale was made between appellees and Farrier, who at the date of the deed was in possession of the property conveyed; that McCollum never in fact contracted or agreed to purchase the property; that Farrier requested the deed to be made to McCollum as grantee, and that McCollum executed the purchase-money notes in order that Farrier's credit might not be affected by the outstanding indebtedness; that Farrier agreed to pay the notes according to their terms; that McCollum was not to pay any part of the purchase money. It was further shown that Farrier paid the cash consideration of $100; that he paid interest on the notes for some time; and that he paid note No. 1 of the series. About thirty days after the execution of the deed by appellees to McCollum, Farrier took a deed from McCollum to the property. This conveyance contained a recital as follows: "That said W. G. Farrier does not assume payment of the above notes, and it is optionary with him whether or not he takes care of them." After receiving the deed from McCollum, Farrier remained in possession of the property for some years. He is not resisting foreclosure of the lien, but is resisting personal liability on the notes. The jury found that at the time of the execution of the notes, or just prior thereto, W. G. Farrier agreed with Leo Hopkins that he would pay the notes according to their terms.

The Court of Civil Appeals has certified to the Supreme Court the following questions:

"Question 1: Was the parol evidence admitted to show Farrier's connection with this transaction and his liability for the payment of the notes admissible over the objection that such evidence contradicted, varied and added to the terms of the written contract as expressed in the deed and notes?

"Question 2: Was the parol evidence admissible to prove the alleged agreement between Farrier and Hopkins, over the objection timely made by Farrier that same was inhibited by section 4, article 3995, R.S.?

"Question 3: Was parol evidence admissible to prove the alleged agreement between Farrier and Hopkins over the objection timely made by Farrier that same was inhibited by section 5, article 3995, R.S.?"

It is undoubtedly a rule of law of ancient standing that as to instruments which at common law were required to be executed under seal, such as a deed of conveyance of real estate, and as to negotiable instruments, no one other than the vendee or payor named in the instrument can be held liable on its covenants. The covenants are those created by...