Holloman v. Oxford

• Decision Date: 09 May 1914
• Docket Number: (No. 7972.)
• Citation: 168 S.W. 437
• Parties: HOLLOMAN v. OXFORD et al.
• Court: Texas Court of Appeals

168 S.W. 437

HOLLOMAN v. OXFORD et al.

(No. 7972.)

Court of Civil Appeals of Texas. Ft. Worth.

May 9, 1914.

Appeal from District Court, Denton County; Chas. F. Spencer, Judge.

Action by Mabel G. Oxford and her husband, J. N. Oxford, against George W. Oxford, Ira J. Holloman, and another, with cross-plea by Holloman against George W. Oxford. Judgment for plaintiff, and for Holloman against George W. Oxford, and defendant Holloman appeals. Reformed and affirmed.

Owsley & Owsley, of Denton, for appellant. A. Q. Mustain, of Pilot Point, for appellees.

CONNER, C. J.

On the 5th day of August, 1904, H. A. Hale, Elizabeth Dowdell, and others, not necessary to mention, sold and conveyed to F. B. Hearne four certain tracts of land in Denton county described in the plaintiffs' petition in this case. In part payment therefor, Hearne executed five promissory notes each for the sum of $400, the first two of which were made payable to H. A. Hale or order, and the last three were made payable to Elizabeth Dowdell or order, and maturing by their terms on the 1st days of January, 1906 to 1910, respectively, and all secured by vendor's lien on the land. The two notes payable to Hale were duly paid and the liens securing them released. On the 21st day of August, 1909, F. B. Hearne sold and conveyed the land in question to Geo. W. Oxford and Mabel G. Oxford, who in part payment of the purchase money jointly assumed the payment of the last three notes executed by Hearne, and which, as stated, were payable to Elizabeth Dowdell on January 1, 1908, 1909, 1910, respectively, being notes 3, 4, and 5 of the series described in the deed from Hale to Hearne. On the 8th day of March, 1910, Mabel Oxford paid to Elizabeth Dowdell out of her separate estate $1,210, the full amount of principal and interest due upon the three unpaid notes of Hearne, in consideration for which Elizabeth Dowdell executed and delivered to Mabel Oxford formal written assignment and conveyance of said notes 3, 4, and 5 of the Hearne series and of the superior title retained to secure the same. This conveyance was duly recorded in Denton county on the 16th day of March, 1910. Thereafter, on the 2d day of February, 1912, G. W. Oxford, joined by his wife, conveyed his undivided one-half interest in said land to appellant, I. J. Holloman. As part consideration Holloman assumed the payment of note No. 5 of the Hearne series, G. W. Oxford representing at the time that notes 3 and 4 of the series had been paid, as evidence of which Oxford exhibited to Holloman a release from Mrs. Elizabeth Dowdell of the vendor's lien for the first four notes of the series mentioned; the release from Mrs. Elizabeth Dowdell reciting that the last note for $400 alone remained unpaid. This release from Elizabeth Dowdell was dated in February, 1912. At the time of appellant's said purchase and assumption, he had no actual notice of the assignment and conveyance hereinbefore mentioned by Elizabeth Dowdell to Mabel Oxford. Mabel Oxford, however, was without knowledge or participation in the false representations of G. W. Oxford, and she therefore joined by her husband, instituted this suit against Hearne, G. W. Oxford, and appellant seeking to recover one-half of the amount evidenced by the three notes that she had paid to Elizabeth Dowdell with prayer as against appellant for a foreclosure of the vendor's lien. Upon proof of the foregoing facts, which are substantially undisputed, the court gave a peremptory instruction to the jury, following which judgment was entered in favor of appellees, and appellant has prosecuted this appeal.

The judgment was for $839, which included interest at the rate of 10 per cent. per annum and $76.25 attorney's fees as specified in the notes upon which the plaintiff declared. For this sum the lien was foreclosed upon the undivided one-half interest that had been purchased by appellant; the judgment, however, providing that it should operate...