Holcroft v. Wheatley
| Decision Date | 13 December 1937 |
| Docket Number | No. 4831.,4831. |
| Citation | 112 S.W.2d 298 |
| Parties | HOLCROFT et ux. v. WHEATLEY et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Carson County; E. J. Pickens, Judge.
Suit by Mrs. Mattie Wheatley against F. J. Holcroft and others to recover on notes which were executed by defendants H. H. Cleek and his wife and assumed by named defendant and his wife, also a defendant, and to foreclose a materialman's lien on realty conveyed by defendants Cleek and his wife to named defendant and his wife. From a judgment for plaintiff, named defendant and his wife appeal.
Affirmed in part, and in part reversed and rendered.
K. H. Dally, of Borger, for plaintiffs in error.
Curtis Douglass, of Panhandle, for defendants in error.
On May 18, 1922, H. H. Cleek and his wife, Opal Cleek, gave to the White House Lumber Company, a corporation, a series of promissory notes aggregating the sum of $1,770, the last of which became due on the 20th of May, 1923. Contemporaneously with the notes, they executed and delivered to said lumber company a materialman's lien covering lot No. 10, and the south half of lot No. 11, in block No. 57 of the town of Panhandle, Tex., to secure the payment of said notes.
On the 18th of August, 1925, in due course of trade, Mrs. Mattie Wheatley became the legal owner and holder of said notes and the unpaid balance evidenced thereby for the sum of $1,000.
On November 15, 1926, H. H. Cleek and wife, by their proper deed, conveyed the premises to F. J. Holcroft, who, as a part of the consideration therefor, assumed and promised to pay to Mrs. Mattie Wheatley the $1,000 and interest, evidenced by the above unpaid notes.
On August 24, 1935, H. H. Cleek, his wife, and Mrs. Wheatley entered into a renewal and extension agreement by the terms of which the maturity date of said notes was extended to August 25, 1935, and the lien securing the payment thereof renewed, but F. J. Holcroft and wife were not parties to such extension agreement.
On August 17, 1936, Mrs. Mattie Wheatley, the appellee, instituted this suit in the district court of Carson county to recover a judgment jointly and severally against H. H. Cleek, his wife, Opal, and F. J. Holcroft and his wife, Myrtle, for the sum of $3,000, and the foreclosure of her alleged lien against the property in controversy.
H. H. Cleek and his wife defaulted.
F. J. Holcroft and his wife pleaded as a defense against the debt and the lien, general denial, plea of not guilty, and the statute of four years' limitation. Vernon's Ann.Civ.St. art. 5527.
The case was tried before the court, and on September 26, 1936, judgment was rendered in behalf of appellee, Mrs. Mattie Wheatley, against H. H. Cleek and his wife, by default, for the sum of $1,629.83, and a foreclosure of the lien on the lots in controversy against them and the appellants herein, F. J. Holcroft and wife.
The last of the series of notes evidencing a part of the consideration for the land was due May 20, 1923, and if no action to enforce the payment and foreclose the lien was brought thereon within four years from said date, limitation, if invoked, would bar a recovery on the notes, and since the lien is only an incident to the debt, no foreclosure of the lien could be enforced.
F. J. Holcroft and his wife, on November 15, 1926, in the deed conveying them the land, assumed and promised to pay the notes of appellee, and limitation was thereby extended for a period of four years from that date; hence, the assumption and promise by appellants in the deed to pay was not subject to the bar of limitation until November 15, 1930.
However, on November 15, 1926, Cleek and wife had parted with the title to the premises by a conveyance to the Holcrofts, and on August 21, 1935, when the Cleeks entered into the renewal and extension agreement with appellee, the notes and the lien securing the payment thereof had been barred for a period of more than four years and nine months, therefore, they could not either renew the notes or revive the lien against the Holcrofts for the benefit of appellee.
In Cooksey v. Blair, Tex.Civ.App., 254 S. W. 509, the court says:
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