Fry v. Barron

• Court: Texas Court of Appeals
• Writing for the Court: Hickman
• Citation: Fry v. Barron, 2 S.W.2d 888 (Tex. App. 1928)
• Decision Date: 10 February 1928
• Docket Number: (No. 401.)
• Parties: FRY v. BARRON.

2 S.W.2d 888

FRY v. BARRON.

(No. 401.)

Court of Civil Appeals of Texas. Eastland.

February 10, 1928.

Appeal from District Court, Dawson County; Gordon B. McGuire, Judge.

Action by W. J. Barron against J. B. Fry. Judgment for plaintiff, and defendant appeals. Affirmed.

See, also, 299 S. W. 230.

Carl Roundtree, of Lamesa, for appellant.

Garland & Yonge and C. P. Rogers, all of Lamesa, for appellee.

HICKMAN, C. J.

Appellant, being the owner of a series of vendor's lien notes, transferred and assigned a portion of the notes to appellee, retaining those not so assigned. The assigned notes were not indorsed by appellant, but a written transfer and assignment thereof was executed and duly acknowledged, containing the following language:

"And I do hereby transfer and assign to said W. J. Barron all my right, title, interest, and claim in and to said land and hereby authorize the said W. J. Barron, his heirs and assigns, to release said vendor's lien on payment of said notes by duly executed release."

The learned trial judge held that the assigned notes were entitled to priority of payment over the ones retained by appellant and the only question presented on this appeal is a challenge of the correctness of that portion of the judgment of the trial court so decreeing.

The case was tried before the court without the aid of a jury, and no findings of fact or conclusions of law appear in the record. The testimony of appellee would support a finding of fact by the trial judge that, contemporaneously with the execution of the written assignment, an oral agreement was made between appellant and appellee that the assigned notes should have priority of payment over the ones retained by appellant. This agreement in no wise varies or contradicts the language of the written assignment. On this point appellee testified as follows:

"Then when Mr. Fry went up there I asked Mr. Fry to indorse these notes. Mr. Shaw spoke up, and said: `No; there isn't any use. Your notes is superior to his.' Mr. Fry said, `They have got to be paid before mine is.' I said, `I would like an indorsement on this.' Mr. Fry and Mr. Shaw said no; there wasn't any use; `your notes have got to be paid first.'"

A vendor's lien retained in a deed and in notes described in the deed is not regarded as such an interest in land as that the assignment thereof or an agreement giving priority to one or more of the notes must be in writing to meet the requirements of the statute of frauds. 27 R....