Hodges v. Roberts

• Decision Date: 15 October 1889
• Citation: 12 S.W. 222
• Parties: HODGES <I>v.</I> ROBERTS <I>et al.</I>
• Court: Texas Supreme Court

12 S.W. 222

HODGES

v. ROBERTS et al.

Supreme Court of Texas.

October 15, 1889.

Appeal from district court, Montague county; F. E. PINER, Judge.

Stephens & Herbert, for appellant. Jameson & Chambers, for appellees.

STAYTON, C. J.

On January 8, 1884, B. F. Hodges sold to T. J. Hart a tract of land. For the land Hart paid $200 cash, and transferred to Hodges a negotiable note for $300 executed to himself by E. W. Roberts, G. W. A. Roberts, and R. E. Bell, payable on November 1, 1884. This note was accurately described in the deed as a part of the purchase money for the land, and the deed reserved a lien on the land to secure its payment. The reservation was in the following language: "But it is expressly agreed and stipulated that the vendor's lien is retained against the above-described property, premises, and improvements until the above-described note, and all interest thereon, are fully paid according to the face and tenor, effect and reading, when this deed shall become absolute." This action was brought on December 21, 1886, against the makers and indorser of the note, with prayer for judgment against all of them, and for the enforcement of the lien. All the defendants were cited, but only the defendant Hart answered. His answer consisted of exceptions to the petition, and a general denial. The exceptions questioned the sufficiency of the facts pleaded to give a lien, and urged the want of the diligence required by the statute to fix liability upon him as an indorser. The case was tried without a jury, and was disposed of, after the evidence was heard, without any separate ruling on the exceptions, and a judgment was rendered in favor of all the defendants. The evidence offered consisted of the note sued upon, the deed from Hodges to Hart, and the testimony of the latter, who stated that he indorsed the note for the purpose alleged, but that after it was due he had more than once requested the plaintiff to sue upon it when its makers were solvent, but that he had failed to do so until several terms of the court passed, when the makers were insolvent.

There can be no pretense that the petition did not state a cause of action against all the defendants, nor can it be with any show of reason contended that the petition did not state facts which fixed a lien on the land described to secure the payment of the note sued on. We are not informed by the record of the ground on which the court acted in entering a judgment for all the defendants; but...