Hale v. Rice
| Decision Date | 26 October 1883 |
| Docket Number | Case No. 1473. |
| Court | Texas Supreme Court |
| Parties | I. N. HALE v. BAKER & RICE. |
APPEAL from Lee. Tried below before the Hon. A. S. Broaddus.
Appellees brought suit, February 9, 1880, against John T. Rowe, F. W. McGuire and I. N. Hale, alleging that the defendant Rowe, on the 14th day of July, 1874, executed to the order of appellees his promissory note for $150, payable in six months, with ten per cent. interest from date. That the consideration of the note was part of the purchase money of lot 6, block 12, in the town of Giddings, Texas. A copy of the note was given in the petition, in which it was recited that the vendor's lien was retained.
That on the same day appellees conveyed, by their deed, the property described, in consideration, among other things, of the above note, and that in that deed of conveyance the vendor's lien was expressly reserved, to secure the payment of the purchase money; that the lot was of the reasonable value of $5,000; that the amount of said note was due for the purchase money; that the deed to the lot, from appellees to J. T. Rowe, was delivered to him at its date and expressly reserved the vendor's lien; that F. W. McGuire and I. N. Hale, who pretended to have purchased said lot from Rowe, had both actual or constructive notice of said deed, and that it contained an express reservation of the vendor's lien, and defendants were notified to produce said deed. They asked for judgment for the amount of the note and foreclosure, and, if the note was barred, then on their lien for the amount, and if this relief could not be granted them, then for the lot, and for general and equitable relief.
Rowe answered with a plea of the statute of limitation, and general denial.
Appellant Hale demurred generally and specially, because it appeared from the petition that the cause of action was barred. He also filed a general denial and answered specially: First, denying any notice or knowledge of any lien; that on the 23d day of August, 1879, and for five years next preceding, his co-defendant, F. W. McGuire, and those whose estate he had, held peaceable, continuous, uninterrupted, adverse possession of the premises, under deeds duly registered, and was thereby vested with an absolute and perfect title; setting out in detail an account of the loan on that date of $3,000 to the said McGuire, which was secured by deed of trust on the property, and subsequent proceedings thereunder; resulting, as shown in an amended answer, in sale by the trustee, by which the title and possession of the said McGuire was vested in the defendant Hale.
That the sole inducement which led appellant to make said loan on the property was the perfect legal title of the said McGuire to the premises.
That appellees, during said period, with knowledge of the fact that the defendant Rowe and others were in possession under deeds duly recorded, and were conveying the premises to third parties, without notice or means of ascertaining knowledge of their lien, permitted such third parties to purchase the premises without informing them of their claim.
That thereby plaintiffs induced this defendant to believe that McGuire's title was perfect, and authorized him to act upon that belief, and were, therefore, estopped from claiming relief as against this defendant.
The demurrer was overruled. Judgment on the 9th of November, 1880, that the lien was not barred by limitation; that the note was barred, and, therefore, no judgment could be rendered against the maker, Rowe, and in his favor for costs; ordering a foreclosure of the vendor's lien against the appellant, for the sum of $244.75, because the note was given for part consideration of the lot, and the lien was specially reserved in the deed from appellees to defendant Rowe; ordering sale of the premises for its satisfaction, and excess, if any, to be paid to appellant.
The assignments of error are obvious from the opinion.
J. T. Swearengen, for ap...
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