Johnson v. Lockhart
| Decision Date | 08 April 1897 |
| Citation | 40 S.W. 640 |
| Parties | JOHNSON v. LOCKHART. |
| Court | Texas Court of Appeals |
Appeal from district court, Galveston county; William H. Stewart, Judge.
Suit by William B. Lockhart, administrator of A. Bernard, deceased, against William R. Johnson, to cancel a note and vendor's lien. From a judgment for plaintiff, defendant appeals, and plaintiff presents cross assignments of error. Reversed.
S. S. Hanscom, for appellant. Mott & Armstrong, for appellee.
The appellant, in due course of trade, purchased, before maturity, a negotiable note executed by one A. Bernard, the appellee's intestate, on the 18th of May, 1883, for $400, with 8 per centum interest thereon from date, and payable 12 months after date, and which note was in part payment of the tract of land which is the subject of controversy between the parties to this suit. The land was sold to the said Bernard in 1883, and upon his paying $1,500 in cash, and executing this note and a deed of trust upon the land, the vendor, Susan A. Dirmeyer, joined by her husband, executed a deed of conveyance to the land, expressly reserving therein the vendor's lien. The note was transferred by Mrs. Dirmeyer to one Le Clere, and by him assigned to Johnson a short time before its maturity. Bernard remained in actual possession of the property, using and enjoying the same, making improvements thereon, and paying the taxes, until his death, which occurred in October, 1894. The appellee, as administrator of the estate of Bernard, filed in November, 1894, an inventory of his estate, which contained the land in controversy. In due time the appellant presented, duly verified, a claim against the estate, to the appellee, for allowance, the basis of the claim being the above-described note; and the administrator rejected the claim, and instituted suit against Johnson for the purpose of having the same canceled, alleging that the same had been paid, and the note in the hands of Johnson, with vendor's lien reserved in the deed of conveyance, together with the deed of trust on the land, both of which were duly recorded, constituted a cloud upon the title to the land; and the plaintiff prayed a cancellation of the note and of the vendor's lien. The defendant Johnson answered by general demurrer and special exceptions and general denial, and also averred specially that the note was unpaid, and was given in part payment of the purchase money, and set up title to the land by purchase of the note, and by deed of conveyance to him for the land in controversy from Mrs. Dirmeyer, and prayed for recovery of the land. The plaintiff, by replication, pleaded limitations of 2, 4, and 10 years, and also the statutes of 3, 5, and 10 years, in bar of the claim to the land, and also pleaded laches, and further alleged that more than 90 days elapsed after the rejection of defendant's claim for payment of the note before he filed his answer in reconvention. The case was tried without a jury, and the court rendered judgment for the plaintiff, canceling the note and lien, and removing cloud from the title, and from which judgment the defendant, Johnson, appealed to this court; and the appellee has filed cross assignments of error upon which he prays the judgment of this court.
The appellant, Johnson, presents several assignments of error, which substantially, succinctly stated, are: That, the court having found as facts that the note given by Bernard was in part payment of the land in controversy, and that the same was unpaid, and that Johnson was the legal and equitable holder thereof, and that the deed from Mrs. Dirmeyer to Bernard expressly retained the vendor's lien upon the land, and that Johnson had acquired by purchase Mrs. Dirmeyer's title to the land since his purchase of the note, the court erred in sustaining the plaintiff's pleas of limitations...
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