Hubert v. Grady

• Decision Date: 29 May 1883
• Docket Number: Case No. 4801.
• Citation: 59 Tex. 502
• Parties: WILL HUBERT v. J. C. GRADY.
• Court: Texas Supreme Court

59 Tex. 502

WILL HUBERT

v.J. C. GRADY.

Case No. 4801.

Supreme Court of Texas.

May 29, 1883.

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                ¦(Signed)¦WILL HUBERT.” ¦
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APPEAL from Brown. Tried below before the Hon. W. A. Blackburn.

The opinion states the case.

Scott & Jenkins, for appellant, on the absence of promise in the instrument, cited Jennings v. Moss, 4 Tex., 452;Gray v. Osborn, 24 Tex., 158;Thompson v. Eanes, 32 Tex., 194; Morrison v. Keese, 25 Tex. Sup., 155; Petty v. Fleishel & Smith, 31 Tex., 169;Norwich Bank v. Hyde, 13 Conn., 279;Wexel v. Cameron, 31 Tex., 617; Daniel on Neg. Inst., vol. 1, §§ 28, 86; Mims v. Mitchell, 1 Tex., 443;Coles v. Kelsey, 2 Tex., 541;Hall v. Jackson, 3 Tex., 309;Roseborough v. Gorman, 6 Tex., 314;Paul v. Perez, 7 Tex., 345;Burnett v. Henderson, 21 Tex., 590.

On superior outstanding title, they cited Gober v. Hart, 36 Tex., 140;Jones v. Taylor, 7 Tex., 240;Moreland v. Atchison, 19 Tex., 304;Cooper v. Singleton, 19 Tex., 260;Taul v. Bradford, 20 Tex., 261;Hurt v. McReynolds, 20 Tex., 595;Littlefield v. Tinsley, 22 Tex., 259;Littlefield v. Tinsley, 26 Tex., 353;Garrison v. King's Adm'r, 35 Tex., 184;House v. Kendall, 55 Tex., 40;Martin v. Snowden, 18 Gratt., 100; Blackwell on Tax Titles, § 414, p. 652.

G. G. Goodwin, for appellee, cited Story on Prom. Notes, p. 23, sec. 21; Chitty on Bills (9th Am. ed.), ch. 5, sec. 4, p. 170.

STAYTON, ASSOCIATE JUSTICE.

This suit was brought by the appellee to recover upon the following instrument:

“$400. On or before the first day of January next, 1877, I promise to pay to J. C. Grady or order, for value received, with twelve per cent. interest per annum from date until paid. This note is given for part of the purchase money on a tract of land purchased by me of J. C. Grady and wife. October, 11th day, 1876.

WILL HUBERT.”

And to foreclose an alleged vendor's lien on ninety acres of land out of the A. Winter survey of six hundred and forty acres in Brown county.

The instrument was set out in the petition and alleged to be a promissory note. When offered in evidence it was objected to, upon the ground that it was not as alleged a promissory note, and for the further reason that it did not evidence a promise to pay any sum of money, nor create any liability upon the part of the appellant.

The instrument is not drawn as promissory notes are usually drawn, in that the statement of the sum to be paid precedes the promise to pay and in that, the sum to which the promise relates is expressed in figures; but the instrument evidences a clear and explicit promise to pay to J. C. Grady, or order, four hundred dollars, at a named date.

This is not a case in which there is a marginal statement in figures, with a blank in the body of the note where the sum to which the promise is intended to apply was intended to be inserted, though the intention of the maker, as to the sum which he promises to pay, is left uncertain or rather wholly omitted. The intention of the maker is clear from the instrument itself, and the court did not err in so holding and in admitting it in evidence.

The instrument was executed to secure the purchase money for ninety acres of land sold by Grady to Hubert at the time it was executed. At the time of the sale, Grady and A. and D. Cheatham claimed as tenants in common three hundred and twenty acres, of which the ninety acres sold was a part, out of a survey of six hundred and forty acres patented to heirs of A. Winter in 1861. It was set up in defense of the action that the two Cheathams were, by agreement between the appellant and appellee, to join the appellee in the execution of the deed to the land agreed to be conveyed; that they had never joined the appellee in the execution and acknowledgment of such a deed as was to be executed; and that on this account there was a defect of title and consequent failure of consideration.

It appears that a deed for the land was executed and properly acknowledged by Grady and wife, and that it was also signed by the Cheathams, but was not by them acknowledged.

There is some conflict of evidence as to whether that deed was ever delivered to the appellee, and the weight of the testimony perhaps shows that it was delivered, and left with the clerk of the county court that he might take the acknowledgment of the Cheathams and record it. The Cheathams seem to have had no objection to acknowledging the deed.

Subsequent to the time of making the deed the Cheathams executed a deed to the appellee for the ninety acres of land, and upon the averments of the appellant that the deed had been destroyed by fire, which did not show when or where destroyed, the appellee tendered to the appellant another deed duly executed by himself and wife, with clause of general warranty. The deed to the appellee from the Cheathams enabled him to make title to the appellant as fully as they could have done before that was done. The effect of the deed from the Cheathams was simply to release to the appellee their interest in the common property; practically to effect a partition.

The appellant also set up as defense a failure of title in the appellee and the Cheathams, in that he alleged the land belonged to N. B. Yard. It appears that in 1852, in the course of the administration of the estate of A. Winter, the land certificate upon which the land was granted was sold, and that through several transfers of the certificate, or of the land located thereby, the same vested in N. B. Yard; but there is no evidence outside of the conveyance...