Hill v. Hoeldtke

• Decision Date: 25 February 1909
• Citation: 117 S.W. 217
• Parties: HILL v. HOELDTKE et al.
• Court: Texas Court of Appeals

117 S.W. 217

HILL v. HOELDTKE et al.

Court of Civil Appeals of Texas.

February 25, 1909.

Error from District Court, Fannin County; Ben H. Denton, Judge.

Action by H. C. Hoeldtke against L. C. Hill and others. From the judgment, Hill brings error. Reversed and remanded.

Defendant in error, Hoeldtke, sued Horstman, McLeary, Leach, and plaintiff in error upon a note and to foreclose a vendor's lien on land. The petition claimed that defendant McLeary had bought the land in question from defendant Horstman, and as a part of the consideration assumed the payment of the note sued on by plaintiff and held by plaintiff against the land, and then sold the land to the plaintiff in error, Hill, who, as a part of the consideration, assumed the payment of the note held by plaintiff. The same facts were alleged as to the note held by Leach in suit.

The plaintiff in error by his answer pleaded, in defense of the cause of action against him: That on October 17, 1906, B. S. McLeary, acting in the name of his wife, L. T. McLeary, made a trade with plaintiff in error, whereby the plaintiff in error sold to McLeary a stock of goods and fixtures, in consideration of which McLeary executed to Hill two notes and a mortgage on the fixtures and a deed to the land in question; plaintiff in error assuming to pay the note sued on by defendant in error Hoeldtke and the note sued on by Leach, and said deed retaining the vendor's lien to secure payment of the said notes. That McLeary took charge of the goods and fixtures and ran the store till July 11, 1907, at which time said notes and the rents past due amounted to $512, which McLeary owed plaintiff in error, and they made another trade, by which McLeary sold and delivered to Hill the stock of goods and fixtures in payment of said $512, and that McLeary took back the land he had deeded to plaintiff in error and released plaintiff in error from the payment of said two vendor's lien notes against it, and McLeary assumed their payment, and McLeary also promised to pay Hill $307.50 due October 1, 1908, as a balance owing by McLeary to plaintiff in error in this trade, and plaintiff in error executed a deed to McLeary for the land in accordance with said trade, and at the time of this trade, July 11, 1907, neither defendant in error Hoeldtke nor Leach had accepted the promise of plaintiff in error to pay said land notes as contained in the assumption thereof in the deed from McLeary to plaintiff in error of October 17, 1906, nor did plaintiff in error ever pay anything on said land notes, nor take possession of the land, nor promise the holders to pay them, nor in any way injure the rights or securities of the holders. That in the trade of July 11, 1907, the consideration received by plaintiff in error was less in value than the amount McLeary owed plaintiff in error as settled in that trade. Plaintiff in error also alleged that if the trade of July 11, 1907, was not completely executed, still it was a binding contract upon a valuable consideration, and he had tendered performance upon his part and had taken possession of the property he got in the trade, and alleged facts showing it inequitable for McLeary not to perform same, and asked for a specific performance. Plaintiff in error further alleged: That said land was deeded to McLeary November 6, 1905, in consideration of two notes executed by McLeary to Horstman for $140 and $195 with 8 per cent. interest, and McLeary assumed to pay the note held by plaintiff, all of which notes were recited in the deed as vendor's liens on the land; that to induce plaintiff in error to accept said deed to the land in said trade of October 17, 1906, and assume payment of the note sued on, McLeary falsely represented to him that said $140 note had been paid off, which plaintiff in error believed and relied on and would not have accepted said deed nor assumed said other notes had he known said $140 note was unpaid; that plaintiff in error learned, one week before the trial, the fact to be that said $140 note was unpaid and now owned by one Ernest McLeary; that on account of the said fraud, which was not discovered till the time mentioned, plaintiff in error repudiated said deed and trade of October 17, 1906, and tendered the deed into court for cancellation, and denied liability to defendants in error Hoeldtke and Leach. The court sustained a general demurrer to this answer.

The case was tried before the court without a jury, and judgment was rendered in favor of defendant in error Hoeldtke...