Hughes v. Hess, 9212.

• Decision Date: 04 November 1942
• Docket Number: No. 9212.,9212.
• Parties: HUGHES v. HESS et al.
• Court: Texas Court of Appeals

166 S.W.2d 718

HUGHES v. HESS et al.

No. 9212.

Court of Civil Appeals of Texas. Austin.

November 4, 1942.

Rehearing Denied December 9, 1942.

Appeal from District Court, Tom Green County; O. L. Parish, Judge.

Suit by Robert Hughes, independent executor of the estate of Mrs. Emma Cornell, deceased, against D. L. Hess and others on certain vendor's lien notes and for foreclosure of such lien. From a judgment for defendants plaintiff appeals.

Affirmed.

R. G. Hughes, of San Angelo, for appellant.

Collins, Jackson, Snodgrass & Blanks, of San Angelo, for appellees.

BLAIR, Justice.

This is the second appeal of this case. The opinion on the former appeal (Richardson v. Hughes, Tex.Civ.App., 146 S.W.2d 255) states the case. The primary question presented before and now is whether the judgment lien of appellee Richardson is superior to the vendor's lien which appellant Hughes, as executor, sought to foreclose on the land involved. Appellee also claimed title by purchase under execution levy and sale independently of her judgment lien, which was made at a time when the vendor's lien was barred of record by limitation. On the former appeal it was held that the attempted extension of the vendor's lien, executed June 3, 1932, by D. L. Hess, the debtor, and R. G. Hughes, attorney for the holders, was void, because the probate court had not authorized the temporary administrator to make the extension agreement; that such void agreement did not toll the running of the statutes of limitation against the notes and vendor's lien; and that they were barred of record by limitation at the time the judgment lien of appellee attached to the property under the provisions of Arts. 5520, 5522 and 6627. Vernon's Ann.Civ.St. The cause was remanded for further proof of the authority of the temporary administrator to make the extension agreement. On the second trial appellant was unable to show that the probate court had authorized the temporary administrator to make the extension agreement, and in consequence the trial court denied a foreclosure of the vendor's lien; and appellant's renewed contention that the extension agreement was valid is overruled upon authority of the former decision.

After the cause was remanded appellant amended his petition, expressly pleading for the first time on April 26, 1941, that this same extension instrument, executed June 3, 1932, and held to be void on the former appeal, was an acknowledgment in writing of the justness of the debt and lien by the debtor under Art. 5539, and expressly sued and declared upon said instrument as a new promise or obligation of the judgment debtor. Also by the same petition appellant sued and declared upon an extension agreement, executed February 25, 1941, between himself as independent executor, and D. L. Hess, the debtor, extending the time of payment of the vendor's lien notes to June 1, 1941, and the lien to four years after the maturity date of the notes. The trial court denied the foreclosure of the lien upon these new promises or grounds.

Appellant contends that the extension agreement of June 3, 1932, was an acknowledgment by the debtor Hess of the justness of the debt and lien sought to be foreclosed under Art. 5539, which provides: "When an action may appear to be barred by a law of limitation, no acknowledgment of the justness of the claim made subsequent to the time it became due shall be admitted in evidence to take the case out of the operation of the law, unless such acknowledgment be in writing and signed by the party to be charged thereby."

The contention of appellant is not sustained. The statute deals primarily with the character of proof necessary to establish an asserted action under a writing "acknowledging the justness of the claim" barred by limitation. It necessarily contemplates a new and valid contract between the immediate parties constituting a new promise or obligation. And since we held on the former appeal that the attempted extension agreement of June 3, 1932, was void because the temporary administrator was not expressly authorized by the probate court to execute it, such void agreement cannot constitute the basis of an asserted action under a writing "acknowledging the justness of the claim" barred by limitation, and particularly so with respect to intervening rights of appellee as a subsequent lien holder or purchaser under execution levy and sale of the property involved. Novosad v. Svrcek, 129 Tex. 34, 102 S.W.2d 393; Texas Land & Mtg. Co. v. Cohen, Tex.Com.App., 159 S.W.2d 859, 863, wherein it is held that "a contract of extension is not effective until accepted by the mortgagee."

Appellant...