Gilles v. Miners' Bank of Cartersville, Mo.

• Decision Date: 17 October 1917
• Docket Number: (No. 1217.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 198 S.W. 170
• Parties: GILLES et al. v. MINERS' BANK OF CARTERSVILLE, MO.
• Court: Texas Court of Appeals

198 S.W. 170

GILLES et al. v. MINERS' BANK OF CARTERSVILLE, MO.

(No. 1217.)^*

Court of Civil Appeals of Texas. Amarillo.

October 17, 1917.

On Motion for Rehearing, November 7, 1917.

Appeal from District Court, Deaf Smith County; Jno. W. Veale, Special Judge.

Action by the Miners' Bank of Cartersville, Missouri, against A. S. Gilles and others. Judgment for plaintiff, and defendants appeal. Affirmed.

See, also, 184 S. W. 284.

On the 27th day of May, 1907, W. G. Bryant and wife conveyed certain lands in Deaf Smith county to P. L. Vasse, by general warranty deed. As part payment for said land Vasse executed and delivered to Bryant a certain promissory note in the sum of $4,500 due on or before two years from date, providing for 8 per cent. interest and 10 per cent. attorney's fees. The vendor's lien was expressly retained in the deed to secure the payment of the said note. Before maturity thereof Bryant, for a valuable consideration, in due course of trade, transferred the note to the appellee bank. On February 15, 1912, Vasse and wife, by general warranty deed, conveyed the said land to appellant Gilles. As part of the consideration for said conveyance Gilles assumed payment of the above-described note, which assumption was recited in the deed to secure payment of the said note. On April 10, 1914, appellee bank filed suit against Vasse, Bryant, and Gilles, praying for judgment for principal, interest, and attorney's fees on the note, and for foreclosure of the vendor's lien on the land against all of the parties. The original petition was amended November 27, 1914, for the purpose of correcting some errors in the description of the lands. On November 6, 1916, plaintiff filed a second amended original petition upon which the suit was tried. Eliza Blackburn and her guardian, to whom Gilles had executed a mortgage upon the lands described in the petition on November 1, 1912, were made parties. The original and both amended petitions prayed for personal judgment against Gilles, and for foreclosure of the vendor's lein against all parties. November 16, 1916, Gilles and the parties to whom he mortgaged the lands answered, pleading the statute of limitations against the note described above.

W. H. Russell, of Hereford, for appellants. Gilliland & Estes, of Hereford, for appellee.

HALL, J. (after stating the facts as above).

Upon the above statement of facts, which we think are the material facts in the case, the judgment should be affirmed. The case is presented upon several assignments of error, many of which we think have no application to the case as made by the pleadings and evidence. It is not necessary for us to discuss articles 5694-5695, R. S., nor the conflict in some of the decisions construing such articles, as they do not apply. Under the Act of 1905, p. 334, Sayles' Civil Statutes, Supplement of 1904-1906, art. 3353, the original note executed by Vasse was not barred at the time Gilles purchased the land and assumed its payment. Having accepted a deed in which it is recited that he assumed payment of the said note as part of the consideration for the conveyance limitation did not begin to run against the plaintiff's right to recover a judgment against him upon such undertaking until after the expiration of four years from the date of his deed. The rule governing the the liability of the said vendee in such case was declared by Brewer, Justice, in Schmucker v. Sibert, 18 Kan. 104, 26 Am. Rep. 765, in the following language:

"Such an undertaking is a contract in writing, and the statute of limitations does not begin to run upon such a contract until the execution of the deed. Nor is it material that this contract is not signed by the grantee. The acceptance of the deed makes it a contract in writing binding upon the grantee, just as the acceptance by a lessee of a lease in writing signed by only the lessor makes it a written contract binding upon such lessee; and suit can be instituted upon it, and the same rights maintained, as though it were also signed by the grantee. And it is not to be considered as a mere promise or acknowledgment, as named in the exceptions to the statute of limitations, and therefore to be signed by the party to be charged. Those exceptions apply to debts already existing against the parties sought to be held, and aim to continue in force prior liabilities. But the grantee in such a deed was not liable before its execution. His liability dates from...