Gregory v. Ward

• Decision Date: 04 June 1926
• Docket Number: (No. 1400.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 285 S.W. 935
• Parties: GREGORY et al. v. WARD.
• Court: Texas Court of Appeals

285 S.W. 935

GREGORY et al. v. WARD.

(No. 1400.)^*

Court of Civil Appeals of Texas. Beaumont.

June 4, 1926.

Rehearing Denied June 16, 1926.

Appeal from District Court, Jefferson County; Geo. C. O'Brien, Judge.

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, and C. W. Howth and Mrs. Violet G. O'Fiel appeal. Affirmed.

O'Fiel, Weidemann & Reagan, of Beaumont, for appellants.

Smith, Crawford & Sonfield, B. F. Pye, and J. L. C. McFaddin, all of Beaumont, for appellees.

HIGHTOWER, C. J.

This suit was filed in one of the district courts of Jefferson county by the appellee M. L. Ward as plaintiff, on February 21, 1923, against Mary J. Gregory, individually and as administratrix of the estate of Thomas W. Gregory, deceased, Kirby Lumber Company, John Deere Plow Company, C. W. Howth, and David E. O'Fiel, as the original defendants. Appellee alleged in his petition that on or about November 23, 1917, he sold and conveyed by his deed of that date to Thomas W. Gregory, deceased, two certain tracts of land in the A. Horton survey in Jefferson county, aggregating approximately 87 acres, and that part of the consideration for the land was paid in cash by Gregory, and the remainder of the purchase money was evidenced by three vendor's lien notes executed by Gregory, the notes being payable one, two, and three years, respectively, after date. He alleged that in the deed to Gregory the vendor's lien was expressly retained to secure the payment of the notes at their maturity, and that the vendor's lien was also expressly retained in the notes themselves. He further alleged that the first of the series of notes (that is, note No. 1) had been paid, but that notes Nos. 2 and 3 had never been paid; that Thomas W. Gregory died about May 27, 1918, and that his widow, Mary J. Gregory, one of the defendants, was appointed administratrix of the estate of her deceased husband by the probate court of Jefferson county, and duly qualified as such administratrix on November 14, 1918; that plaintiff had presented to Mrs. Gregory, as administratrix, the two unpaid vendor's lien notes for her allowance and approval as a claim against the estate of Thomas W. Gregory, and that she approved and allowed the claim so presented to her for the full amount of the two vendor's lien notes, and that thereafter the probate court of Jefferson county made its order approving and allowing said notes and ordering their payment. Appellee alleged that notes Nos. 2 and 3 were still wholly unpaid, and appellee prayed for judgment against Mrs. Gregory, individually and as administratrix of the estate of Thomas W. Gregory, deceased, and for judgment against C. W. Howth and David E. O'Fiel for the amount of the notes, interest, and attorney's fees, and for foreclosure of the vendor's lien as against all of the defendants.

On February 10, 1925, appellee, by amended petition, made Mrs. Violet G. O'Fiel, wife of David E. O'Fiel, a party defendant, and prayed for the same relief against her as sought against the other defendants.

Kirby Lumber Company and John Deere Plow Company each filed a disclaimer, and the other defendants answered by a plea in abatement, in which they alleged that the heirs of Thomas W. Gregory were necessary parties to this suit, and further, in substance, that the land sought to be here subjected to the vendor's lien was the homestead of Thomas W. Gregory and his family at the time of his death and remained the homestead of Mrs. Gregory and several of their minor children after his death, and was still such homestead; that the order of the probate court allowing and approving appellee's claim of indebtedness evidenced by the vendor's lien notes was a nullity for the reason that the probate court had no power or jurisdiction to allow or approve any claim affecting the homestead of the Gregories, and the defendants C. W. Howth and Mrs. Violet G. O'Fiel further answered that the appellee's right, if any he ever had, to enforce the vendor's lien against the land in question was barred by the statute of limitations of four years. This will suffice as a statement of the pleadings.

The case proceeded to trial with a jury, but, upon conclusion of the evidence, the court peremptorily instructed a verdict in favor of the appellee for the foreclosure of the vendor's lien as prayed by him on the land in controversy to the extent of his debt, principal, interest and attorney's fees, represented by the two vendor's lien notes, and entered judgment in accordance with the verdict, and, from this action and judgment of the trial court, C. W. Howth and Mrs. Violet G. O'Fiel prosecute this appeal. Appellants advance several assignments and related propositions, by which they contend the judgment should be reversed and rendered in their favor, but, if not so, that it should at least be reversed and the cause remanded.

The controversy is based upon the following facts: On November 23, 1917, the appellee M. L. Ward conveyed by deed to Thomas W. Gregory, deceased, approximately 87 acres of land in the A. Horton survey in Jefferson county, the consideration for which was paid by Gregory partly in cash and the remainder was evidenced by his three vendor's lien notes. The deed to Gregory expressly retained a vendor's lien as did also the notes, to secure the payment of the unpaid purchase money for the land. The notes were payable in one, two, and three years after the date of the transaction. Thomas W. Gregory died May 27, 1918, and after his death the first note, or note No. 1, was paid. Mrs. Mary J. Gregory was duly appointed administratrix of the estate of Thomas W. Gregory on November 13, 1918, and duly qualified as administratrix on the following day.

On September 3, 1921, Mrs. Mary J. 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 valuable consideration they conveyed to C. W. Howth and David E. O'Fiel, the 87 acres of land in controversy. This deed was not placed of record, but upon the trial it was introduced in evidence, and on the back of it was the following notation:

"2/1/22. For value received I & we hereby transfer all my & our right, title & interest in the within described land to Mrs. Violet G. O'Fiel, to become her own separate estate.

                                           "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 in controversy, and this deed was duly acknowledged and filed for record on the day of its execution.

On January 9, 1925, Mrs. Mary J. Gregory, as administratrix of the estate of Thomas W. Gregory, deceased, approved the claim of indebtedness held by the appellee Ward, represented by the two unpaid vendor's lien notes, as a just claim and debt against said estate, and on January 24, 1925, the probate court of Jefferson county, by its order duly made and entered, allowed and approved this claim for the full amount as had been done by the administratrix.

One of the bills of exception found in this record shows that on May 13, 1925, Mrs. Mary J. Gregory, as administratrix of the estate of Thomas W. Gregory, filed an application in the probate court of Jefferson county to have the land in controversy designated and set apart as the family homestead of the Gregorys, and on the same day this application was granted.

One of appellants' contentions in this court is that the trial court was in error in refusing to permit appellants to introduce evidence showing that at the time of Gregory's death the land in controversy constituted the family homestead of the Gregorys, and that it continued the family homestead of his widow and three of their minor children after his death. Such evidence was offered by appellants, but upon objection by appellee that such evidence was wholly immaterial to any issue in this case, the court excluded it, and appellants saved their bill. If we understand the contention of appellants in this connection, it is, in substance, that the 87 acres of land involved, if it had become the homestead of Gregory at the time of his death and remained the homestead of his widow and minor children after his death, could not be subjected to the vendor's lien of appellee sought to be foreclosed in this suit. We...