Joiner v. Perkins

• Decision Date: 24 April 1883
• Docket Number: Case No. 4837.
• Citation: 59 Tex. 300
• Parties: WM. M. JOINER, ADM'R, v. A. G. G. PERKINS.
• Court: Texas Supreme Court

59 Tex. 300

WM. M. JOINER, ADM'R,

v.A. G. G. PERKINS.

Case No. 4837.

Supreme Court of Texas.

Apr. 24, 1883.

APPEAL from Lee. Tried below before the Hon. I. B. McFarland.

Suit brought in district court of Lee county by appellant, as administrator of the estate of William Joiner, deceased, to recover $257.40 due that estate on two notes, executed by appellee on the 8th day of December, 1878, and to foreclose the vendor's lien upon a tract of land situated in that county, for a part of the purchase money of which appellant averred that the notes were given. A writ of attachment against the property of appellee was also prayed for, and obtained.

Appellant answered:

1st. A general and special exception.

2d. Plea of privilege to be sued in Colorado county, where he resided.

3d. Plea of general denial.

4th. Special exception on the ground of variance between plaintiff's petition and the attachment proceedings.

The court rendered judgment quashing the attachment, sustaining defendant's exceptions to plaintiff's petition, and dismissing the suit.

Plaintiff prayed in his petition for a writ of attachment against the property of the defendant, for $100, but his petition stated the amount of his demand at $231.37, with interest on $146.20 thereof from that date until paid, at the rate of ten per cent. per annum, and with lawful interest on $85.17 thereof from December 8, A. D. 1878, until paid. His affidavit for attachment stated the amount of his demand at the sum of $257.40. The writ of attachment was issued for $257.40.

E. C. Harrell and R. E. Harris, for appellant.

J. L. Rouseau and J. F. Crow, for appellee, cited Malone et al. v. Kaufman, 38 Tex., 455;Wynn, Adm'r, v. Flannegan, 25 Tex., 778;Stancel v. Roberts et al., 13 Ohio, 156;Skaggs et al. v. Nelson, 25 Miss., 94; Bedwell v. Thompson, 25 Tex. Sup., 245; Smith v. Garrett, 29 Tex., 48;Hunt v. White, 24 Tex., 643.

WEST, ASSOCIATE JUSTICE.

The action of the court in quashing the writ of attachment on the ground of variance was correct. The exact amount of the debt, too, for the securing of which the writ of attachment was sought, appears not to be made sufficiently certain from the averments of the petition and the affidavit. Brown v. Martin, 19 Tex., 343;Marshall v. Alley, 25 Tex., 342; Espey v. Heidenheimer, Galveston Term, 1883.

The court was in error, however, in dismissing the case for want of jurisdiction. The constitution (art. V, sec. 86), and also the statute (R. S., art. 1117) provides that the district court shall have jurisdiction in all cases for the enforcement of liens on real estate.

Here the land described in the petition, on which it is sought to foreclose the vendor's lien, is alleged to be in Lee county, and was purchased by appellee of Mrs. Catherine B. Mundine, and Mrs. Mundine being then indebted to appellant as administrator of the estate of Wm. Joiner, deceased, instead of taking all the notes payable to herself, or order, directed appellee to execute some of the notes to appellant, as such administrator, in satisfaction of her debt to the estate of appellant's intestate. This was done, and afterwards appellee executed by way of renewal to appellant as administrator, the notes now in suit, in lieu of the former notes that were unpaid. The fact that the first notes were executed to appellant instead of Mrs. Mundine (the original vendor), or that subsequently these notes were taken up and other notes substituted, would not affect, as between these parties, the vendor's lien for the purchase money; that always exists in such a case in the absence of its waiver. Hicks v. Morris, 57 Tex., 659. It was clearly such a lien as was contemplated by the constitution and laws, when jurisdiction was conferred on the district court as to the enforcement and foreclosure of liens on real estate. R. S., art. 1198, clause 11.

Without any contract or agreement, by operation of law this lien springs at once out of the contract of purchase, and exists and survives until waived or extinguished by payment, as between the original parties to the notes, wholly independent of any agreement, verbal or written. Hence the averment in the petition in this case as to the existence of the vendor's lien, though not as full as it should have been, was sufficient. Flanagan v. Cushman, 48 Tex., 244;...