Holford v. Patterson

• Decision Date: 15 March 1922
• Docket Number: (No. 1906.)
• Citation: Holford v. Patterson, 240 S.W. 341 (Tex. App. 1922)
• Court: Texas Court of Appeals
• Parties: HOLFORD et al. v. PATTERSON.<SMALL><SUP>*</SUP></SMALL>

240 S.W. 341

HOLFORD et al. v.PATTERSON.^*

(No. 1906.)

Court of Civil Appeals of Texas. Amarillo.

March 15, 1922.

Second Motion for Rehearing Denied April 12, 1922.

Appeal from District Court, Hale County; R. C. Joiner, Judge.

Suit by J. W. Patterson against Elva I. Holford and others.From a judgment for plaintiff, defendants appeal.Affirmed.

P. B. Randolph, of Plainview, for appellants.

Kinder, Russell & Griffin, of Plainview, for appellee.

HUFF, C. J.

At a former day of this courtwe affirmed this case.A motion for rehearing has been presented, and upon its consideration we have decided to rewrite our opinion and withdraw the former one, and give additional reasons for affirming this case.

Appellee Patterson sued W. H. Holford, Elva I. Holford, and A. B. Hawk, to partition 200 acres of land situated in Hale county, Tex.It is alleged W. H. Holford was asserting some kind of interest in the land, and that appellee owned an undivided one half interest thereof, and that Elva I. Holford the other half, but that she was claiming the whole; that Hawk is claiming a lien on the entire tract of land, and that his lien accrued more than four years prior to the filing of the suit, and no renewal of the lien had been executed or recorded; that if Elva I. Holford in her purchase from L. L. and W. H. Holford assumed the payments of Hawk's notes it was after appellee's rights attached; that the whole debt, if established, should be charged against her land.His prayer is that he be quieted in his title to his one-half interest, and that the cloud be removed therefrom, and for partition.Elva I. Holford answered by general denial and not guilty; that she owned the whole of the tract, and if foreclosure was had that it be granted against the whole of the land.Hawk asked for foreclosure of the lien against the entire tract, setting up the facts constituting his rights, and denying the bar of the lien.W. H. Holford disclaimed any interest and alleged he had conveyed his interest to Elva I. Holford.The appellee answered the several pleas by general denial and not guilty as to Elva I. Holford and A. B. Hawk, and pleaded the four-year statute of limitations as to Hawks' plea for foreclosure of the lien on appellee's undivided one-half interest.This action was filed December 15, 1920, and on the 3d day of August, 1921, the petition was amended by bringing in Hawk as a party in place of A. C. Tubb, the original payee in the note, which he had transferred to Hawk.By judgment the trial court decreed the title to be in appellee Patterson and appellantElva I. Holford, each owning an undivided half interest therein.He decreed a partition of the land between them, appointing commissioners.He finds and decrees as to the interest of appellee Patterson that the lien set up by Hawk accrued more than four years before the filing of the suit, and was barred by the statute of limitation, and that Hawk take nothing as against appellee, and that his prayer for foreclosure on appellee's interest in the land be denied; that Elva I. Holford was indebted to Hawk, and that he recover the debt against her, with foreclosure against her interest, which should be set aside to her by the commissioners, and after approval of the court of the report and when so partitioned it was decreed to be sold to pay the indebtedness due Hawk.

The appellee Patterson's title is stated as follows: J. J. Bratton is the common source; deed dated December 21, 1907, from J. J. Bratton to W. H. and L. L. Holford to the land in question; duly filed for record September 30, 1908.

In cause No. 1812, on the district court docket of Hale county, Tex., J. W. Patterson v. L. L. Holford, caused to be issued a writ of attachment April 10, 1920, and the return thereon showing its execution on the same day by levying on the land in question as the property of L. L. Holford, and the attachment lien records of Hale county, showing the filing and recording of the attachment and the sheriff's return thereon.The parties to the suit and the amount of the debt, $1,400.The record shows that it was filed for record and recorded April 7, 1920.

Judgment in cause No. 1812, J. W. Patterson v. L. L. Holford, September 11, 1920, reciting the appearance of the parties and a trial before the jury, who rendered a verdict for $1,400 and for foreclosure of the attachment lien, and judgment thereon for the sum of $1,400 in favor of Patterson, against L. L. Holford, with 6 per cent. interest from date of judgment, and foreclosure of the attachment lien on the undivided one-half interest owned by L. L. Holford in and to the land in question, directing the sale of the property in satisfaction of the judgment.Order of sale issued on the above judgment October 11, 1920, to sell the land.The sheriff's return, showing the levy and sale by virtue thereof, reciting that the sale was made to J. W. Patterson, who was the bidder at such sheriff's sale.

Sheriff's deed to Patterson dated the 8th day of December, 1920, conveying the land to appellee, setting out the judgment of foreclosure and conveying all the interest L. L. Holford had in and to the land on the 10th day of April, 1920.

Elva I. Holford secures her rights as follows: Through a deed executed by W. H. Holford and wife and L. L. Holford and wife, to Elva I. Holford, dated April 16, 1920, filed for record April 21, 1920, conveying the entire 200 acres of land for the recited consideration therein of $2,000 paid and the assumption of a certain mortgage upon the land for the sum of $1,100 in favor of A. C. Tubbs, and $195 due the state of Texas.

A. B. Hawk's claim is as follows: A mortgage executed by W. H. and L. L. Holford to A. C. Tubbs on the entire 200 acres of land in question, reciting that it was to secure a note due Tubbs by the mortgagors, the Holfords, in the sum of $1,100 with interest at 6 per cent. per annum.The mortgage and note are dated October 17, 1910, and the note was due and payable two years after date.The mortgage was filed for record November 10, 1910.

On the 28th day of December, 1920, A. C. Tubbs, in consideration of $1,100 paid by A. B. Hawk, transferred by a written instrument, acknowledged for record, the above mortgage, bearing date the 17th day of October, 1910, on the 200 acres of land in suit, together with the note described therein and the money due and to become due thereon with interest from the 7th day of November, 1920.This instrument was filed for record January 10, 1921.

Hawk also relies upon an extension agreement dated the 5th day of February, 1921, and filed for record February 14, 1921.This extension agreement purports to have been made between A. B. Hawk, as the then present legal owner and holder of the note, and W. H. and L. L. Holford, the makers of the note, joined by Elva I. Holford, the owner of the land.It purports to extend the maturity of the note and lien to the 1st day of May, 1921.It recited therein the history with reference to the note and mortgage, and that the interest had been theretofore duly paid, and that it was understood from time to time that the note and mortgage should be extended; that Hawk had purchased the note and agreed to extend the same until the 1st day of May, 1921, and that the note was extended to said date, referring also to the written transfer thereof, which it is stated was duly executed by Tubbs.It also recited the assumption of the payment of the note in the deed to Elva I. Holford by her, which was executed to her by W. H. and L. L. Holford, on the 16th day of April, 1920.It was agreed by the parties in the trial court that there is no other renewal or extension of that note and lien executed or acknowledged and recorded in the records of Hale county, Tex., as required by law.

Appellants offered in evidence an attachment issued out of cause No. 1812, J. W. Patterson v. L. L. Holford, dated August 4, 1920, showing a levy on all of the undivided interest of L. L. Holford in and to the 200 acres of land in question, and the date of the return showing that it came to hand on the 4th day of August, 1920, at 10:20 a. m., and executed on the 4th day of August, 1920, at 10:20 a. m., and filed August 4, 1920.Defendant also introduces in evidence the attachment lien record of Hale county, heretofore set out under Patterson's claim of title.Defendant also introduced in evidence citation in cause No. 1812, in the district court of Hale county, Patterson v. L. L. Holford, showing service of citation on L. L. Holford on the 23d day of April, 1920, at 4 o'clock p. m. in the city of Crystal Springs, county of Pasco, Fla. Defendant also introduced in evidence notice of lis pendens in cause No. 1898, J. W. Patterson v. W. H. Holford, covering the land in question, and filed in the office of the county clerk of Hale county on the 11th day of June, 1921, at 2:45 o'clock p. m., and recorded in lis pendens records of said county.It was agreed by the parties that this was the only lis pendens notice that had been filed in the case, and that no lis pendens notice was filed in cause No. 1812.It was also admitted that J. W. Patterson knew of the deed of trust lien at the time he instituted the suit against Holford in cause No. 1812 and at the time of the foreclosure of the attachment.There is no testimony in this record from the appellantElva I. Holford as to the consideration actually paid for the land deeded to her by W. H. and L. L. Holford.All that the record shows is the recitation in the deed, and her good faith is not shown otherwise than by the deeds and records filed and recorded in Hale county.

Appellants contend the deed to Elva I. Holford conveyed to her a title superior to appellee in that there was no lis pendens notice filed in Hale county, as required by law, on the date of her purchase; that the recording of the attachment writ and the officer's return thereon did not operate as constructive notice.If the attachment lien record...