Grubbs v. Eddleman
| Decision Date | 21 June 1915 |
| Docket Number | (No. 6957.) |
| Citation | 179 S.W. 91 |
| Parties | GRUBBS et al. v. EDDLEMAN et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Orange County; A. E. Davis, Judge.
Action by L. T. Grubbs and others against J. P. Eddleman and another. Judgment for defendants, and plaintiffs appeal. Reversed and rendered.
Bisland & Bruce, of Orange, for appellants. Holland & Holland, of Orange, for appellees.
That the nature of this case and the transactions leading up to the bringing of this suit may be readily understood, we here make a brief statement of such transactions as we gather them from the fact findings of the trial court; there being no statement of facts filed with the record.
On March 19, 1909, J. P. Eddleman desired to purchase lots 1, 2, 3, and 4, block 51, of the amended Sheldon survey to the city of Orange, from Mary C. Harmon and husband, Jesse Harmon. For the purpose of procuring the cash payment demanded by the Harmons he borrowed from George Call $1,020, for which he executed his note, with George A. Foreman, H. W. Bland, L. T. Grubbs, and John Burton, plaintiffs herein, as indorsers thereon. On the 22d day of March, 1909, said Eddleman purchased said lots from the Harmons, which the Harmons conveyed to him by a general warranty deed reciting the payment of $1,000 cash and the execution and delivery by said Eddleman to them of one note for $800, due one year after date, one note for $1,350 due two years after date, and one note for $1,350 due three years after date, all bearing 10 per cent. interest per annum, and retaining a vendor's lien on said lots to secure the payment of said notes. The note given Call by Eddleman was renewed, with these plaintiffs as indorsers, and the last renewal was due January 18, 1913, on which date the Eddleman note was taken up and satisfied by the plaintiffs in this cause. W. H. Stark came into possession of the first two vendor's lien notes in the due course of business, by indorsement, before maturity. On September 28, 1909, Eddleman, for the purpose of securing these plaintiffs as indorsers on the $1,020 note given George Call, executed and delivered to them a note for $1,000, due one year after date, and secured the same by a deed of trust of that date on the lots conveyed to him by Harmon and wife. On March 28, 1911, J. P. Eddleman, by general warranty deed, conveyed this property to W. H. Stark, the consideration named in said deed being $1 and the assumption of the three vendor's lien notes given by Eddleman to Harmon and wife, which notes are fully described in the deed of March 22, 1909, from Harmon and wife to Eddleman. After the institution of this suit defendant Stark procured a deed from Harmon and wife to this land; consideration named therein being the release of said Harmon and wife as indorsers on the original Eddleman notes. On the 19th day of January, 1913, the plaintiffs in this case paid to George Call $1,245, being the amount due Call from Eddleman on the loan as originally made. Eddleman has never paid the $1,000 note sued on in this case. The deed of trust given plaintiffs to secure the $1,000 note sued on was filed for record on October 13, 1909, and duly recorded on the 15th day of October, 1909, in the deed of trust records of Orange county, and properly indexed. The $1,000 note sued on in this cause was placed on the hands of attorneys for collection.
Plaintiffs having paid Call $1,245 in satisfaction of the original note which was indorsed by them for the accommodation of Eddleman, and Eddleman having failed and refused to repay the money so paid to Call, they brought this suit against Eddleman upon the note given by him to indemnify them, and for a foreclosure of the deed of trust given by Eddleman to secure said indemnifying note. They also sued defendant W. H. Stark, alleging that he is in possession of the lots upon which they have a lien, and that he is asserting some kind of claim thereto, and pray for a foreclosure of said lien as against said Stark.
Defendant Eddleman answered: First, by general denial; second, that the note sued upon is but a collateral note given to plaintiffs by him to indemnify them against loss as indorsers of the note given by him to Call, which said note has never been paid by said plaintiffs; and, third, that the note and mortgage sued on was released by plaintiffs and said mortgage returned to him as a release from further liability upon said note and mortgage.
Defendant Stark, in effect, answered that he (Stark) was the owner of the three vendor's lien notes executed and delivered by Eddleman to the Harmons, aggregating $3,200, and interest, etc., given in part payment for the lots involved in this suit, and that he purchased said lots from Eddleman by warranty deed in payment of said notes, and that he thereby got title to the same freed from the lien asserted by plaintiffs, as plaintiffs' lien was obtained from Eddleman, who at the time said lien was given did not hold the superior legal title to the lots in question, but held only secondary to the superior vendor's lien, as evidenced by the deed from the Harmons to Eddleman, and by the notes of Eddleman held by the said Stark, and prayed, however, that in the event the court should hold that he did not hold title to said lots free from the lien held by plaintiffs he be permitted to recover judgment against Eddleman for the amount due upon said vendor's lien notes, and that said property be sold, and that out of the proceeds of such sale he (Stark) be paid: First, the amount due on said notes; second, the sum paid out by him (Stark) for improvements on said lots; and, third, for judgment over against Eddleman upon his warranty.
Plaintiffs by supplemental petition deny all the material defenses of the defendants, and aver that, when Stark purchased the said lots from Eddleman and in part payment therefor assumed the payment of the note executed by Eddleman to Harmon, said note became Stark's debt, and that they were no longer liens on said lots, and therefore Stark holds said lots subject to the lien given by Eddleman to secure the note sued upon, and that therefore they should be permitted to have their judgment against Eddleman for the full amount due on the note sued upon and for a foreclosure of their said lien against both Eddleman and Stark unincumbered by the lien asserted by Stark.
Upon these pleadings, substantially given, the case was tried before the court without a jury. Upon a finding of facts by the trial court substantially the same as hereinbefore set out, the trial judge reached the conclusion, as set out in the transcript, that plaintiffs should not recover as against either of the defendants, Eddleman or Stark, and therefore rendered judgment against plaintiffs and in favor of both of said defendants. From this judgment, all the plaintiffs have appealed.
Appellants' first assignment of error is that the court erred in failing to render judgment for appellants against Eddleman for the amount due upon the note sued upon, for a foreclosure of their lien, for attorney's fees as prayed for, and for costs of suit.
The findings of fact of the court, which are not challenged by either party, are that the note for $1,020 given by Eddleman to Call was indorsed by plaintiffs and was renewed with said plaintiffs as indorsers for Eddleman on January 18, 1913, at which time the plaintiffs paid Call the sum of $1,245, the amount then due upon the same; that said payment was made for Eddleman; that on September 28, 1909, Eddleman, for the purpose of securing plaintiffs as indorsers on the $1,020 note given by him to Call, executed and delivered to plaintiffs a note for $1,000 due one year after date (being the note sued on), and to secure payment of the same executed and delivered to plaintiffs a deed of trust of that date on the lots conveyed to him by the Harmons; that Eddleman has never paid the $1,000 note sued on in this case; that said deed of trust was promptly and properly recorded on the 15th day of October, 1909.
We are unable to understand upon what theory the trial court rendered judgment in favor of defendant Eddleman against plaintiffs under the foregoing fact findings. The facts found by the court not only warrant, but demand, that judgment be entered for plaintiffs against Eddleman on the note sued for, for such a sum as plaintiffs paid to Call in satisfaction of the original note of $1,020 given by Eddleman to Call and which plaintiffs had indorsed for the accommodation of Eddleman, and for a foreclosure of their lien upon the lots in question evidenced by the deed of trust executed by Eddleman and delivered to them. Therefore appellants' first assignment is sustained, and judgment as above indicated will be here rendered for plaintiffs.
We now come to appellants' second and last assignment, which is, in substance, that the court erred in not rendering judgment foreclosing plaintiffs' lien on the lots in question against defendant W. H. Stark, free from any superior claim of said Stark. Appellants' proposition under this assignment is that, as Stark had purchased and become the owner of the original purchase-money notes executed and delivered by Eddleman to the Harmons in part payment for said lots, and had thereafter purchased said lots from Eddleman, and in part payment therefor agreed to and did assume the payment of said notes owned by him, said notes became Stark's debt, and the lien upon the property which had existed by virtue of said purchase-money notes was released, and appellants' deed of trust lien is now a lien upon said lots freed...
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