First Nat. Bank v. Ackerman

• Decision Date: 20 March 1888
• Citation: 8 S.W. 45
• Parties: FIRST NAT. BANK OF HOUSTON v. ACKERMAN <I>et al.</I>
• Court: Texas Supreme Court

Page 45

8 S.W. 45

FIRST NAT. BANK OF HOUSTON v. ACKERMAN et al.

Supreme Court of Texas.

March 20, 1888.

Commissioners' decision. Error from district court, Grimes county.

Suit by the First National Bank of Houston against Catherine Ackerman and Fanny L. Thomas, as administratrix of the estate of Hamp Thomas, deceased. Plaintiff brings error.

Goldthwaite & Ewing and O. A. Norwood, for plaintiff in error. Boone & Cobbs, for defendant in error.

MALTBIE, J.

The First National Bank of Houston on 2d of April, 1880, recovered a judgment against Hamp Thomas for $3,116.42, an execution issued within less than 12 months from the rendition of the judgment, and an abstract was duly recorded in the records of Grimes county on 12th of July, 1882. On 13th of December, 1882, J. H. Owen sold and conveyed to Thomas a tract of land of 318 acres, situated in Grimes county, for the sum of $3,848, evidenced by their notes for $1,282.66 each, payable in one, two, and three years, with 10 per cent. interest from date until paid, expressly reserving a lien in that deed to secure their payment. Mrs. Catherine Ackerman, one of the defendants in error, desired to purchase 56 acres out of the 318-acre tract, but would not do so unless Owen would release his lien. On 7th day of June, 1884, Owen agreed with Mrs. Ackerman that if she would pay to Thomas the sum of $950, the purchase price of the land to be paid to him, (Owen,) that he would release his lien on the 56 acres. In pursuance of this agreement Mrs. Ackerman paid Thomas the $950 for the land, who on the same day paid it to Owen; but Owen, under some arrangement with Thomas, allowed him to retain the money. There was no agreement between Ackerman and Owen as to how the latter should apply the money paid to Thomas. Owen, in consideration of $950, released all of his right, title, and interest in the 56 acres sold by Thomas to Mrs. Ackerman, by an instrument in writing; and Thomas at the same time, and on the same sheet of paper, in consideration of the same sum of money, conveyed the land to Catherine Ackerman. Only one of the three notes given by Thomas for the purchase of the lease was ever paid, nor was the $950 that Owen allowed Thomas to retain ever paid. Soon after the transfer of the land, Thomas died, and on 27th of February, 1885, Fannie L. Thomas was appointed administratrix of his estate. Subsequently, Owen made application to the county court of Grimes county for an order to sell the 318 acres of land, less the 56 acres sold to Mrs. Ackerman, for the purpose of paying the two notes executed by Thomas to secure the payment of the purchase money of the land. The order was granted, the land sold, bid in by Owen at $2,000, and the sale duly confirmed, Owen crediting his bid on the notes. The $950 paid by Mrs. Ackerman was never credited on either note. On March 8, 1886, appellant presented to Fanny L. Thomas, for allowance, the judgment recovered by it against Hamp Thomas, and she, as administratrix of the estate of Thomas, on the same day rejected it. This suit was brought to establish the judgment against the estate of Thomas, and to foreclose its lien on the 56 acres purchased by Mrs. Ackerman. The district court established the claim as a just demand against the estate of Thomas, foreclosed its judgment lien and ordered the land to be sold as under execution, but directed that the proceeds of the sale be first paid to Ackerman to the extent of $950, — the amount paid Thomas for the land, — and the balance, if any, be paid on appellant's demand. The release executed by Owen is as follows: "The State of Texas, Grimes County: Know all men by these presents that I, John H. Owen, have this day, for and in consideration of the sum of nine hundred and fifty dollars to me in hand paid or secured by Hamp Thomas, have this day released all right, title, or claim, by vendor's lien or otherwise, to the certain tract or parcel of land conveyed by Hamp Thomas this day to Mrs. Catherine Ackerman, by warranty deed herewith attached, (for further description of said tract of land reference is here made to said hereto attached deed,) this 7th day of June, A. D. 1884. JOHN OWEN." It will be observed that there is no grantee or releasee named in this instrument, but Owen knew, at the time of its execution, that Mrs. Ackerman had furnished the identical money that was paid to him, and that the intent and purpose on her part was to obtain a good title to the land; and all of the attending facts and circumstances show that the intention of the parties was not that the superior title to the land should vest in Thomas, but that it should vest in Mrs. Ackerman, upon payment of the purchase money to Owen, who held the superior title to the land for the purpose of securing the payment of the notes executed by Thomas; and immediately upon the payment of the price of the 56 acres, the release from Owen and the deed from Thomas, were delivered to Mrs. Ackerman. It was clearly the intention of all the parties, that the transfer or release — by whatever name called — from Owen should not take effect until the money was paid, and that it then should inure to the benefit of Mrs. Ackerman.

And we are of opinion that, under the facts of this case, that there never was an instant of time in which the superior title to the 56 acres was vested in Hamp Thomas, but that the release from Owen was...