Gregory v. Ward

• Decision Date: 28 June 1929
• Docket Number: (No. 4720.)
• Citation: 18 S.W.2d 1049
• Parties: GREGORY et al. v. WARD.
• Court: Texas Supreme Court

Page 1049

18 S.W.2d 1049

GREGORY et al. v. WARD.

(No. 4720.)

Supreme Court of Texas.

June 28, 1929.

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

Action by M. L. Ward against Mary J. Gregory, individually and as administratrix of the estate of Thomas W. Gregory, deceased, and others. Judgment for plaintiff was affirmed (285 S. W. 935), and certain defendants bring error. Reformed and affirmed.

O'Fiel & Reagan, of Beaumont, for plaintiffs in error.

Smith, Crawford & Sonfield and J. L. C. McFaddin, all of Beaumont, for defendant in error.

CURETON, C. J.

On November 23, 1917, the defendant in error, M. L. Ward, conveyed by deed to Thomas W. Gregory approximately 87 acres of land out of the Horton survey in Jefferson county, the consideration for which was paid by Gregory partly in cash and the balance evidenced by his three vendor's lien notes. The vendor's lien was retained in the deed and also in the notes to secure the payment of this unpaid part of the purchase money. The notes were payable one, two, and three years after date. Gregory died May 27, 1918, and after his death the first note was paid. On November 13, 1918, Mrs. Mary J. Gregory, the wife of the deceased, was appointed and duly qualified as administratrix of his estate. On September 3, 1921, Mrs. Gregory, individually, and the children and heirs of Thomas W. Gregory, executed and delivered to C. W. Howth and David E. O'Fiel a deed, by which, for a recited consideration of $10 and "other good and valuable consideration," there was conveyed to Howth and O'Fiel the 87 acres of land previously sold by Ward to Gregory, and other lands. This deed was not placed of record, but was introduced in evidence, and on the back of it was a notation as follows:

"2/1/22. For value received I and we hereby transfer all of my and our right, title and interest in the within described land to Mrs. Violet G. O'Fiel, to become her separate property. David E. O'Fiel. C. W. Howth."

On October 24, 1924, Mrs. Violet G. O'Fiel and her husband, David E. O'Fiel, executed a deed purporting to convey to C. W. Howth an undivided one-half interest in the 87 acres of land here in controversy, which deed was duly acknowledged and filed for record on the day of its execution. On January 9, 1925, Mrs. Gregory, as administratrix of the estate of her deceased husband, approved the claim of indebtedness held by the defendant in error, Ward, represented by the unpaid vendor's lien notes, as a just claim and debt against her husband's estate, and on January 24, 1925, the probate court of Jefferson county, by its order duly made and entered, allowed and approved the claim.

On February 21, 1923, M. L. Ward filed suit in the district court of Jefferson county on the two vendor's lien notes previously described, against Mary J. Gregory, individually and as administratrix of the estate of Thomas W. Gregory, deceased, the Kirby Lumber Company, the John Deere Plow Company, C. W. Howth, and David E. O'Fiel. By an amendment filed February 10, 1925, Mrs. Violet G. O'Fiel, wife of David E. O'Fiel was also made a party defendant, and the same relief prayed for against her as was sought against the other defendants. The defendant in error, Ward, in his petition set forth the history of the conveyance of the land to Gregory, the execution of the deed and notes, with the retention of the vendor's lien, and attached to the petition as exhibits the notes and a copy of the deed. It was shown that the vendor's lien and superior title were retained to secure the payment of the vendor's lien notes sued on, and other allegations made sufficient to authorize a foreclosure on the notes, or a recovery of the land by reason of superior title, if that relief should become necessary. It was alleged in this petition that the defendants named above, other than Mrs. Gregory, were each asserting some sort of claim to the land, but that, if they, or any of them, had any such claim, it is inferior and subordinate to the vendor's lien and superior title, for the enforcement of which the suit was brought. The plaintiff also charged in the petition, upon information and belief, that the defendants Howth, Mrs. Violet G. O'Fiel, and David E. O'Fiel or one of them, by the terms of a written instrument, had assumed and agreed to pay off the vendor's lien notes sued upon. It was also alleged, upon information and belief, that Mary J. Gregory and the heirs of Thomas Gregory, deceased, had, on a date not stated in the petition, executed a deed to Howth, Mrs. Violet G. O'Fiel, and David E. O'Fiel or to some of them, to all of their interest in the land, and that as a part of the consideration the parties just named had assumed the payment of the vendor's lien notes, but that the deed had not been placed of record. The petition alleged, however, that said parties were liable for the full amount of the unpaid notes, including interest and attorney's fees. They were notified to produce the deed on the trial of the case.

The petition alleged that the estate of Thomas Gregory was insolvent, and had been insolvent since Mary J. Gregory was appointed administratrix, and "that on account of the conflicting claims of the defendants with the estate of Thomas Gregory, deceased, it became necessary to institute this suit in the district court, since the probate court in which the administration of the estate of said Thomas Gregory, deceased, is pending has no jurisdiction over the defendants in this case, and it is necessary that the defendants be made parties to the suit to foreclose the vendor's lien notes and establish plaintiff's interest and claim in said land above described." Prayer was made for a judgment against the defendants, and each of them, for the full amount due on the notes, including interest and attorney's fees, foreclosure of the vendor's lien against the land as it existed November 23, 1917, and "that all adverse claims of every character of the defendants, and each of them, be canceled, and that said land be directed to be sold according to law for the purpose of satisfying the amount of said notes, including interest, attorney's fees, and costs of court, but that, if the court should be of the opinion that the plaintiff is not entitled to have judgment against the defendants for the amount of said vendor's lien notes, then and in that event plaintiff prays that he have a decree foreclosing his vendor's lien upon said above described property to the extent of the amount of said two notes, with interest, attorney's fees, and costs of court, against all the defendants; but if the court should be of opinion that plaintiff is not entitled to a judgment against the defendants, or either of them, foreclosure of the vendor's lien upon said above described land to the extent of the amount of said notes, then and in that event plaintiff prays that he have judgment against defendants and each of them, for the title and possession of said land in accordance with the legal title retained in said deed by plaintiff." (Italics ours.)

The Kirby Lumber Company and the John Deere Plow Company each filed a disclaimer, and on the trial of the case judgment was entered in their favor on these disclaimers. The other defendants answered by pleas in abatement, in which they claimed that the heirs of Thomas Gregory were necessary parties to the suit, and further, in...