Flewellen v. Cochran

• Decision Date: 03 November 1898
• Court: Texas Court of Appeals
• Parties: FLEWELLEN et al. v. COCHRAN.<SMALL><SUP>1</SUP></SMALL>

48 S.W. 39

FLEWELLEN et al. v. COCHRAN.¹

Court of Civil Appeals of Texas.

November 3, 1898.

Error from district court, Harris county; John G. Tod, Judge.

Action by Owen L. Cochran against John D. Flewellen and others to recover on certain promissory notes, and to foreclose a certain vendor's lien and mortgage. From a judgment in favor of plaintiff, certain defendants bring error. Affirmed.

A. J. & J. D. Harvey, H. M. Browne, and Brashear & Dannenbaum, for plaintiffs in error. Jones & Garnett, for defendant in error.

WILLIAMS, J.

The findings of fact made by the trial judge were correct, except that the date of the conveyance from Crawford to Flewellen was May 28, 1884, instead of 1894, as stated in the first finding. From these findings the case appears to be substantially this: Crawford, on the date mentioned, conveyed to Flewellen an undivided half of 2,243½ acres of land in Waller county, taking Flewellen's three notes for the purchase money, payable in one, two, and three years from date, and reserving in the deed a lien to secure their payment. These notes were by Crawford assigned to defendant in error, Cochran. Flewellen and the owners of the other undivided half of the 2,243½ acres fairly divided it between themselves, setting apart to Flewellen a specific tract. None of the parties complain of this division. Subsequently, Flewellen conveyed to other persons specific parts of the tract thus set apart to him, and they paid for it, put their deeds on record, and went into possession. On the 9th day of November, 1888, Flewellen, in order to induce Cochran to release from the lien 101½ acres of the land, conveyed to one Ashford, executed to Cochran a mortgage on two small tracts in Grimes county, now claimed by plaintiff in error Carter. This mortgage was duly recorded in Grimes county, and Flewellen thereafter conveyed the land embraced in it to Irwin Carter, who placed his deed upon record, and took possession. In this mortgage Flewellen made a full acknowledgment of the notes originally given for the land, and promised to pay them. He made other such written acknowledgments of the notes, except the part of them which had been paid, on the 16th day of May, 1890, and on the 15th day of March, 1894. So that at no time did as much as four years elapse after the maturity of the first note without such an acknowledgment. This action was begun December 11, 1896, by Cochran against Flewellen, for the amount of the notes, and against purchasers from Flewellen for foreclosure of the vendor's lien and mortgage. Among such purchasers were the plaintiffs in error, A. C. Calloway, Jr., W. J. Calloway, S. L. Garrett, and Irwin Carter. Judgment was rendered in favor of plaintiff for the debt and foreclosure as prayed for, and the parties just named seek to have it reversed.

Their main contention is that plaintiff's cause of action against them for a foreclosure of the lien was barred by limitation, and they rely upon article 3358, Rev. St. 1895, which provides that "every action other than for the recovery of real estate, for which no limitation is otherwise prescribed, shall be brought within four years next after the right to bring the same shall have accrued, and not afterward." This section of the statute, in our opinion, is inapplicable, for the reason that another provision governs such cases as this. By article 3356, suits evidenced by or founded...