Holland v. W. C. Belcher Land Mortgage Co.

• Decision Date: 16 December 1922
• Docket Number: (No. 10079.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 248 S.W. 803
• Parties: HOLLAND v. W. C. BELCHER LAND MORTGAGE CO.
• Court: Texas Court of Appeals

248 S.W. 803

HOLLAND v. W. C. BELCHER LAND MORTGAGE CO.

(No. 10079.)^*

Court of Civil Appeals of Texas. Ft. Worth.

December 16, 1922.

On Motion for Rehearing January 20, 1923.

Appeal from District Court, Tarrant County.

Action by the W. C. Belcher Land Mortgage Company against M. I. Holland. From a judgment for plaintiff, defendant appeals. Affirmed.

C. A. Wright, of Fort Worth, for appellant.

C. S. Arnold, of Fort Worth, for appellee.

BUCK, J.

This is a suit filed against the appellant by the appellee, as holder and owner of a promissory note and mortgage executed by George Howard and wife to the Southern Trust Company. The note and mortgage were executed June 26, 1916, and were given for and to secure the payment of $1,700, with interest. It was alleged that George Howard and wife subsequently sold the land upon which the mortgage was given, to M. I. Holland, and that in said deal, as a part of the consideration, Holland assumed and promised to pay this indebtedness; that subsequently, the said note and mortgage was assigned and transferred to the appellant here; that through mistake and without consideration the Southern Trust Company executed a release of this mortgage lien; that later Holland sold the land involved, being 100 acres in Bryan county, Okl., to one Marshall, who paid the entire consideration therefor to said Holland. It appears that at the time of the suit both the plaintiff and the defendant below resided in Tarrant county, Tex. Plaintiff sought a judgment against defendant upon the alleged parol assumption by defendant of the incumbrance on the land, made at the time of the purchase of the land by Holland from Howard and wife. The cause was tried before the court, and from a judgment for plaintiff for the amount sued for, the defendant has appealed.

The deed from Howard and wife to Holland is in part as follows:

"Witnesseth, that said parties of the first part for and in consideration of the sum of twenty-five hundred ($2,500.00) dollars, the receipt of which is hereby acknowledged, do give, grant, bargain, sell and convey unto the said party of the second part, his heirs, and assigns, all of the following described tract of real estate, situated in Bryan county, Okl., to wit. * * * To have and to hold the same unto the said party of the second part, his heirs and assigns, together with all and singular the tenements, hereditaments and appurtenances thereunto, belonging, in fee simple forever.

"And the said parties of the first part for themselves and their heirs, executors and administrators, do hereby covenant with the said party of the second part that at the delivery of these presents they are lawfully seized and possessed of an absolute and indefeasible estate of inheritance in fee simple in and to the said real estate and that the same is free and clear of all incumbrances whatsoever save and except mortgages to the Southern Trust Company for $1,700.00 and $170.00 and that they will warrant forever defend the title to the same against all persons whatsoever."

It cannot be said that in the deed the vendee specifically assumed the payment of these notes, secured by the mortgages, nor is it so contended by appellee. The reliance is placed on the parol assumption alleged to have been given. Howard testified as to this matter as follows:

"I am asked to state what occurred at the time I sold this tract of land to Mr. Holland. At the time I sold this land to Mr. Holland, I sold 630 acres of land, and the total consideration, I think, was $14,100, and I think the consideration on this was $25 or $27 an acre, as I remember. We figured up the entire amount that the land came to, and he paid me the amount over and above the mortgages in cash.

"Q. What was he to do in regard to the mortgage? A. He was to pay the mortgages.

"Mr. Conner: We object to that, because it is a conclusion that he was to pay the mortgages.

"The Court: What did he say about paying the mortgages, not whether he was to pay, what was said by you and him with reference to any particular mortgage or this one? A. My understanding was—

"The Court: Not your understanding; just what was said and done.

"Mr. Arnold: Q. Repeat, as near as you can, the conversation that was had.

"The Court: The conversation, not your understanding; that is for the court to pass on, whether there was an understanding. A. As I remember, he agreed to assume—agreed to pay the mortgages on the land.

"The Court: Anything further?

"Mr. Arnold: He agreed to pay all the mortgages on the land, including the mortgages on this particular tract? A. That is the way I remember it.

"On the 29th day of August, 1917, I was connected with the Southern Trust Company. At or prior to that time the Southern Trust Company had never been paid the amount of this mortgage. At or prior to the 29th of August, 1917, the Southern Trust Company had sold and conveyed the note and the mortgage heretofore introduced in evidence to the W. C. Belcher Land Mortgage Company. I think there was an assignment in blank with the mortgage when it was sold; that is the way we always sell; we sell the note and sign an assignment properly executed in blank. I have had a good deal of experience in the land mortgage business in the state of Oklahoma.

"I think that subsequent to the time that Mr. Holland assumed the note and mortgage in question he paid the interest on the mortgage. I know at the time, when we made this settlement. I think there was—I looked at some books I had; there was a credit on the whole amount; in other words, there was $9,050 of mortgages on the entire tract of land, and this piece of land is described by what we call the Emma Gilmore tract, and there was a $1,700 mortgage, and I allowed him credits on the purchase price of $31.17 to apply on a commission note that was due the 1st of July, 1917, and $42.50 to apply on the interest coupon notes, and, as I remember it, he paid the interest and all items that were due the following July; he purchased this land in the latter part of May; I thought he paid the interest coupons; I didn't look at the book to be sure, but I am certain there was nothing delinquent. I was thereafter in charge of the business of the Southern Trust Company until September, 1919. Mr. Holland never paid the note and the mortgage of $1,700 to the Southern Trust Company.

"The transfer from the Southern Trust Company to the Belcher Land Mortgage Company of the note and the mortgage involved in this suit was by an assignment in blank; in other words, the name of the party to whom it was assigned —it was a custom for us to leave that blank, so if they wished to sell it they could fill in the name of the party to whom they sold it. * * *

"This trade with Mr. M. I. Holland was consummated with him in the office of Messrs. Hatchett & Ferguson in Durant, Okl.; Judge Ferguson and Mr. Holland were there part of the day. Whether he was there all of the day I don't know. I don't remember whether he signed the check in blank and left it with Judge Ferguson to be filled out. Mr. Holland, Mr. Ferguson, and Mr. Arnold were there. Mr. Holland was there a considerable part of the time that day. Whether he remained there the entire afternoon, I don't remember. * * * Mr. Holland was there at the time the trade was made, but as to the closing of it—of the details—I couldn't say. You see we made the trade several days before we closed it up, the deed, etc.

"I delivered the deed to Mr. Holland, and, as I remember, the deed which I delivered to Mr. Holland did not include this Emma Gilmore tract and several other tracts too, but there was a deed, as I remember it, for each allotment or portion of allotment that was transferred to Mr. Holland. I remember distinctly of discussing with Mr. Holland the $1,700 due the Southern Trust Company on the Emma Gilmore tract, together with all of the mortgages on the tracts; we discussed them.

"Q. Can you swear about this mortgage, that he promised you as part of the consideration that he would pay off the note? A. That was my understanding—that he would pay the mortgage against the land.

"Q. Do you have any recollection of hearing him make any absolute promise as to that? A. I told you my understanding of the matter was that he was to pay all the mortgages on the land.

"The Court: Q. Did you hear him make that statement, that he would do it, not your understanding; did you hear him say specifically, `I will pay that $1,700 mortgage'? A. I don't know that I heard him say it in just those words; the transaction was some time ago, and the best I can state is my remembrance of it; that he agreed to pay the mortgages on the land. As to the exact conversation, that would tax my memory a great deal. It is not my remembrance of the transaction that he agreed to buy the land subject to the debt."

Holland testified:

"At the time I bought this Emma Gilmore land from Mr. Howard with the $1,700 mortgage against it, which has been introduced in evidence, as to whether I assumed to pay or agreed to pay that note and mortgage, I will state no, I don't remember of having any such conversation. I bought the land for the purpose of trading it.

"I am asked to state what was said and done, as far as I remember, with reference to the buying of the land, the consideration to be paid and the disposition to be made of these notes and mortgages. The attorneys attended to the figuring part for me, and I was not in there but very little that day, the day the transaction was made. I don't remember exactly what the price of this land was, something from $22 to $25 per acre—something like that; I don't remember what the exact price was; it has been a long time. Messrs. Hatchett & Ferguson, the attorneys, represented me and also Mr. Howard, and they drew all of this business up, and they fixed all of this business up; I was in and out of there. I left it to my attorneys to fix it up, and also to Mr. Howard's attorney. I believe he...