Johnston v. Arrendale
| Decision Date | 26 November 1902 |
| Citation | 71 S.W. 45 |
| Parties | JOHNSTON et ux. v. ARRENDALE.<SMALL><SUP>*</SUP></SMALL> |
| Court | Texas Court of Appeals |
Appeal from district court, Bexar county; S. J. Brooks, Judge.
Action by J. R. Arrendale against George A. Johnston and wife. From a judgment for plaintiff, defendants appeal. Affirmed.
T. F. Shields and Wm. Aubrey, for appellants. Ball & Ingrum, for appellee.
This suit was brought on March 12, 1902, by the appellee, J. R. Arrendale, against the appellants, George A. Johnston and his wife, Annie C. Johnston, upon a certain promissory note executed March 13, 1899, by appellant George A. Johnston to W. W. Sloan for the sum of $2,300 (which note will be more fully described in our conclusions of fact), and to foreclose a vendor's lien expressed in said note, and a mortgage made contemporaneously with it to better secure the payment of the money, upon a certain lot or parcel of land situated in the city of San Antonio, Tex., which land will be more fully described in our findings of fact. The defendants answered by general and special exceptions to the petition, and specially pleaded that the parcel of land upon which the foreclosure of the alleged liens was sought was, at and long prior to the time the note and mortgage were executed, their homestead; that the note sued on was given by G. A. Johnston for money loaned to him by the plaintiff through his agent, A. A. Gray; that it was not given for the purchase money of the property; and that the vendor's lien was expressed therein and the mortgage executed for the purpose of evading the constitution and laws of the state prohibiting the loan of money on a homestead. The appellee, by a supplemental petition in reply to appellants' plea of homestead, alleged certain facts which he claimed subrogated him to a prior vendor's lien which he claims was discharged by the money evidenced by the promissory note sued on. To this supplemental petition the appellants interposed special exceptions. As the alleged matters of subrogation were not insisted on or submitted to the jury on the trial of the case, it was unnecessary to state the allegations in the pleading or exceptions to it. The exceptions to appellee's pleadings having been overruled, the case was tried before a jury, who returned a verdict in favor of the appellee for $2,460.71, upon which the judgment appealed from was entered.
Conclusions of Fact.
On the 13th day of March, 1899, the appellant George A. Johnston executed and delivered to W. W. Sloan a certain promissory note for the sum of $2,300, payable three years after date to the order of said Sloan in United States gold coin, with interest at the rate of 8 per cent. per annum from date until paid; interest payable semiannually. The note recites that it was given in part payment for a certain lot or parcel of land opposite the United States arsenal grounds in San Antonio, Bexar county, Tex., fronting 25 2/5 varas on the west side of South Flores street, and running back between parallel lines to San Pedro creek for depth. It further recites that said property was conveyed by Sloan to the maker of the note, to secure the payment of which a vendor's lien is reserved in said note and conveyance; that, to guaranty the payment of the note, George A. Johnston, joined by his wife, on the same day executed a deed of trust to A. A. Gray, trustee, on the land described. In the note is stipulated an agreement between G. A. Johnston and W. W. Sloan that on failure to pay it, or any installment of interest thereon, when due, said note shall, at the election of the holder thereof, mature. It further provides that if the note is placed in the hands of an attorney for collection, or if collected by suit, then an attorney's fee of 10 per cent. additional shall be added to the full amount due, as attorney's fees. On the 13th day of March, 1899, contemporaneous with the execution of said note, W. W. Sloan executed to G. A. Johnston his deed of that date conveying the property described in the note. The deed recites a consideration of $3,000, of which $700 is recited as paid in cash, and $2,300 by note, which is the same note hereinbefore described, and expressly retains a vendor's lien to secure its payment. At the same time the deed of trust recited in the note was executed by Geo. A. Johnston and his wife to A. A. Gray, as trustee, to better secure W. W. Sloan in the payment of said note. It provides that upon failure of G. A. Johnston to pay the taxes on the property, or to keep the premises insured, the owner and holder of the note may declare the same due and payable. The note was assigned by W. W. Sloan by indorsement, without recourse, to J. R. Arrendale. To the latter was also assigned by Sloan the superior title to said property, such as a vendor has for the unpaid purchase money, which assignment refers to the deed of conveyance from Sloan to Johnston, and the deed of trust made by Johnston and wife, hereinbefore described, as well as to the note. The appellant failed to pay the installments of interest when due on said note. He also failed to pay the taxes upon the property, and to keep the premises insured, for which the note was given. On account of such failure, the appellee, who was the owner and holder, elected to, and did, declare the note mature, and the whole amount due, and placed the note in the hands of an attorney for collection. The amount due on the note, principal, interest, and attorney's fees, amounted in the aggregate to $2,460.70, as found by the verdict. These are the immediate and undisputed facts upon which appellee's action is based, and his judgment rests.
The facts leading to the execution of the note and deed of trust or mortgage are as follows: On September 19, 1892, Anna Smith sold the property in controversy to appellant G. A. Johnston and H. M. Carroll, who executed to her their two joint and several promissory notes for $2,000 each, which expressly retained a vendor's lien upon the property to secure their payment. Afterwards, in 1894, Johnston and Carroll partitioned the property between them; Johnston taking the north half, and Carroll the south half. There was a dwelling house upon the premises at the time they purchased and when they made the partition. The family of each...
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