Irvin v. Garner

• Court: Texas Supreme Court
• Writing for the Court: BONNER
• Citation: Irvin v. Garner, 50 Tex. 48 (Tex. 1878)
• Decision Date: 01 January 1878
• Parties: MALINDA IRVIN v. NANCY E. AND MARY A. GARNER.

50 Tex. 48

MALINDA IRVIN

v.NANCY E. AND MARY A. GARNER.

Supreme Court of Texas.

1878.

APPEAL from Cass. Tried below before the Hon. James H. Rogers.

This is a suit brought by J. R. Irvin against Nancy E. and Mary A. Garner, on a joint promissory note, as follows, to wit:

“On or before the 3d day of January, 1873, we promise to pay to J. R. Irvin, or bearer, the sum of six hundred and thirty-two 50/100 in gold coin, bearing 12 per cent. interest; it being for the purchase-money of a certain tract or parcel of land known as the tract or parcel of land whereon Nancy E. and Mary A. Garner now lives, for value received of him this December 23d, 1872.

+---------------------------+
                ¦(Signed,)¦NANCY E. GARNER. ¦
                +---------+-----------------¦
                ¦         ¦MARY A. GARNER.” ¦
                +---------------------------+
                

The petition sets out the note, and alleges that it was the purchase-money for a tract of land, and “that said Nancy E. and Mary A. are now in possession of said land by virtue of a purchase and title deed from one George Vaughan.” It then describes the locality and boundaries of the land, and gives notice to defendants to produce the said deed on the trial of the cause, alleges the non-payment of the said money, and prays for judgment for the same, and “for an order of court to sell the above-described tract or parcel of land, containing one hundred acres, to pay off and satisfy vendor's lien on the premises.” The defendants answer by general exception, by general denial, and by special plea, sworn to, in the nature of a plea of non est factum, stating that the note was read to them as an ordinary promissory note, bearing the legal rate of interest, “and not as a promissory note for land, to bear interest at the rate of 12 per centum.”

The verdict of the jury was in favor of the plaintiff on the note, and that the land was not subject to the vendor's lien; and judgment being rendered accordingly, the plaintiff brings the case by writ of error to this court, to reverse the judgment, because his claim of vendor's lien was adjudged against him.

There was no ruling of the court upon the exceptions, and exceptions taken to the evidence. The question in the case arises upon the facts in evidence and the charge of the court upon them. Additional facts are given in the opinion.

O'Neal & Son, for appellant, cited Pinchain v. Collard, 13 Tex., 333;Jackson v. Hill, 39 Tex., 495;Cannon v. Bonner, 38 Tex., 491;Brightman v. Word, 37 Tex., 311.

BONNER, ASSOCIATE JUSTICE.

The principal questions involved in this case arise upon the legal effect on the vendor's lien of--

First. The substitution of a third person for the original vendor as payee of the note given for the purchase-money.

Second. The subsequent execution of a new note for the original one.

Third. Whether the taking of a deed of trust upon the same land necessarily releases the vendor's lien.

The facts, as developed by the testimony, are substantially that the one hundred acres of land upon which the vendor's lien is sought to be enforced were formerly owned by one J. S. Irvin, who is not a party to the record. He sold the same to one George Vaughan and received his note for the purchase-money. Afterwards J. S. Irvin bought land from J. R. Irvin, the original plaintiff below, and traded to him, in payment thereof, the note which J. S. Irvin had received from George Vaughan. Subsequently, Vaughan sold and deeded the one hundred acres of land which he had purchased from J. S. Irvin to the defendants below, Nancy E. and Mary A. Garner, for the sum of $1,050. Of this amount $500 was paid down in cash, and, by consent of all the parties, for the remainder, of $550, the defendants executed and delivered their note to the plaintiff, J. R. Irvin, and also executed to him a deed of trust on the land to secure the same; and the note held by him on Vaughan was given up.

Afterwards, the note given to J. R. Irvin not having been paid, the defendants executed and delivered to him a new note for the principal and accrued interest, but did not take new deed of trust.

The new note was dated December 23, 1872, payable on the 3d day of January, 1873, to J. R. Irvin, for the sum of $632.50 in gold coin, with interest at the rate of twelve per centum, and reciting therein that it was given for the purchase-money of the land.

The suit was instituted on the 18th of November, 1873, in the usual form, with prayer for judgment for principal and interest in gold coin and enforcement of vendor's lien.

On the 4th of December, 1873, the defendants answered by general exception and general denial; and on the 4th of April, 1875, they filed a special plea of non est factum, sworn to by Mary A. Garner, in which they do not deny having signed the note, but say that the same was read over to them by the plaintiff as an ordinary promissory note for the sum of money therein mentioned, to bear eight per centum interest only, and not as a promissory note for land, to bear interest at twelve per centum.

The jury returned a verdict for the plaintiff for $632.50 principal, with interest at twelve per centum from the 3d day of January, 1873, date of maturity of note, and that the land was not subject to the vendor's lien.

Judgment was rendered for the plaintiff for $632.50 only, and that the vendor's lien did not exist. Neither the verdict nor judgment specified that it was for gold coin.

Motion for new trial overruled, and this writ of error prosecuted by Malinda Irvin, as surviving wife of J. R. Irvin, now deceased.

The first error assigned is to that portion of the charge in which the court, after instructing the jury in regard to the effect upon the vendor's lien of the taking a new note, sums up his instructions upon this issue as follows: “In other words, if the proof satisfies you that the note sued on is for a greater amount, either as to principal or interest, than the original note given for the land to Vaughan, the said note sued on being given to the plaintiff, and a new note, being for a different amount and to a different person, cannot and does not hold on the land the vendor's lien.”

This charge is objected to because contrary to law, and because it assumes a state of facts not in evidence, in this: that the first note was given to Vaughan, when in fact it was given to plaintiff Irvin.

This charge assumes, as a proposition of law, that if a new note for the purchase-money of land is given to another than the vendor, and for a greater amount than originally promised, the vendor's lien does not attach.

There is no question, under the evidence, but what the note sued on was both given to some other person than the vendor and was for a greater amount; and the jury, in returning a verdict against the vendor's lien, must necessarily have been controlled by this charge, unless they found against it under the plea of non est factum. This being a special plea, the burden of proof of this matter in evidence was on the defendants. (Muckleroy v. Bethany, 27 Tex., 551; 2 Greenl. Ev., sec. 300.)

The evidence seems not to have been satisfactory to the jury that the note was to bear interest at the rate of eight per centum only, as averred in this plea, as they returned a verdict for interest at the rate of twelve per centum, as specified in the note; and it is reasonable to presume that the same testimony was not more satisfactory on the question of the vendor's lien, and hence that the jury must have been influenced by the charge.

The vendor's lien is said to have had its origin in a country where lands were not liable, either during the life of the debtor or after his death, for all personal...