Knox v. Gruhlkey

• Decision Date: 24 January 1917
• Docket Number: (No. 1100.)
• Citation: 192 S.W. 334
• Parties: KNOX v. GRUHLKEY et al.
• Court: Texas Court of Appeals

Page 334

192 S.W. 334

KNOX v. GRUHLKEY et al.

(No. 1100.)

Court of Civil Appeals of Texas. Amarillo.

January 24, 1917.

On Motion for Rehearing, February 21, 1917.

Appeal from District Court, Potter County; J. B. Dooley, Special Judge.

Action by W. H. Gruhlkey against J. Garrison and W. A. Knox. From a judgment for plaintiff, defendant Knox appeals. Reversed and rendered as to him, and affirmed as to the first-named defendant.

Bean & Klett, of Lubbock, for appellant. C. E. Gustavus, of Amarillo, for appellee.

HUFF, C. J.

W. H. Gruhlkey sued J. Garrison and W. A. Knox. Personal judgment was sought against J. Garrison on a note for $814, dated September 12, 1913, payable to the order of D. M. Young on demand, no interest, and 10 per cent. attorney's fees. It is alleged the Bankers' Trust Company, a corporation, was the legal and equitable owner of 80 acres of land; "that the promissory note aforesaid, executed by the defendant J. Garrison, was given in part payment for and as part of the consideration for a reconveyance and retransfer of the title to the land and premises aforesaid from said Bankers' Trust Company to the defendant J. Garrison, who had theretofore conveyed said land to said Bankers' Trust Company, and by reason of the execution of said promissory note and the agreement to retransfer and reconvey said land and premises by the Bankers' Trust Company, and in an attempt so to do there arose and now exists a valid and subsisting equitable vendor's lien against said land and premises to secure the payment of said note;" that the note was in due course of business transferred to appellee Gruhlkey, and that demand had been legally made for the payment of the note and default made; that W. A. Knox was making some pretended claim to the land. The prayer was for judgment on the debt, and for foreclosure of the lien.

Garrison did not answer, and judgment by default was entered against him for the debt. W. A. Knox answered, denying that there was a vendor's lien; also alleging that by an agreement the lien was expressly waived, and if there was a lien created or intended that he (Knox) had no notice thereof, either actual or constructive; that he purchased the land in good faith, paying a valuable consideration therefor and before any notice that the lien was claimed.

The appellee, by supplemental petition, denied the agreement to waive the lien, alleging that Knox was not an innocent purchaser for value because the consideration was for a pre-existing debt, and also that J. Garrison did not have a sufficient legal title to the land, but that the deed from the Bankers' Trust Company was to one I. J. Garrison, and the deed to Knox was from J. Garrison in consequence of which Knox could not hold the land as a bona fide purchaser. It is necessary at this time to note the objections of the appellee to the assignments presented because there is no such statement of facts in this court which can be considered for the reason, as urged, that a duplicate was not filed thereof in the trial court; but appellee files herein a waiver to the objection on that ground, for the reason that in making the objections he had overlooked an agreement had with counsel for appellant to waive the filing of the statement in the trial court.

Assignments from 1 to 4, inclusive, and 7 to 9, inclusive, assail the judgment and findings of the trial court, substantially to the effect that there was an implied vendor's lien for the full amount of the note sued on, and that there was not an agreement at the time of the sale and transfer of the land to waive the vendor's lien. The trial court finds that the agreement had was with reference to waiving an express vendor's lien. The evidence does not show that an express lien in terms was mentioned; but we are not prepared to hold that there was no evidence authorizing the court to find such only was the agreement, or that the implied lien was not waived by agreement at the time of the conveyance. While the law gives a vendor's lien when the purchase money is not paid, yet it may be waived by taking additional or independent security by the vendor when it is not made to appear that he also relied upon the lien given by law. Cresap v. Manor, 63 Tex. 485. It appears also that in the absence of an agreement to the contrary by virtue of the operation of law, that the vendor has a lien for the purchase money; but if it affirmatively appears at the time that the lien was intentionally waived, the law will not presume the lien to defeat the intention of the parties. Brown v. Christie, 35 Tex. 689; Glasscock v. Glasscock, 17 Tex. 489. However, on the findings of the court that there was no agreement to waive the implied lien, we will overrule the above assignments.

The fifth and sixth assignments present error on the action of the court in foreclosing the lien against the land as to Knox, who it is asserted was an innocent purchaser. The court held as a matter of law Knox "was not a bona fide purchaser. He took a title which bore an obvious imperfection and accepted an irregular conveyance." The imperfection referred to was that in the deed of reconveyance it recites that it was conveyed to I. J. Garrison, as grantee, and the deed to Knox was from J. Garrison and wife. It is contended that Knox knew that J. Garrison was the party with whom he was dealing while the deed was to I. J. Garrison, but that he took the conveyance anyway.

The Bankers' Trust Company, at a meeting of its stockholders, at which J. Garrison was present, passed a resolution September 11, 1913, to the effect that the company, by its president, attested by its secretary, deed and deliver back to each stockholder his land, notes, or cash put into the company for stock, requiring such stockholder to pay his pro rata share of an amount necessary to reimburse such stockholders who paid cash in full, and to include an additional amount to pay the actual and necessary running expenses of the company, the amount additional to be determined by a finance committee, which was to report on the 12th day of September, 1913. The finance committee reported to the adjourned meeting that 4 per cent. of the face value of the stock would be necessary to meet the requirements of the above resolution, and at the adjourned meeting of the directors the following resolution was passed:

                               "Amarillo, Texas, 9/12/1913
                

"At an adjourned meeting of the directors of the Bankers' Trust Company, which met at 11 a. m. September 12, 1913, pursuant to adjournment of September 11th, at the Elmhirst Hotel, Amarillo, Texas, upon motion of E. H. Steed, seconded by J. R. Wrather, that each person who had put property into the company for stock be deeded back his land, or given back his property as soon as he pays his pro rata of the expenses as audited by the finance committee, amounting to 4 per cent. of the face of his stock, to be paid to D. M. Young, as an individual, either in cash or a note approved by the finance committee, payable on demand, without interest, should the amount so collected be more than sufficient to pay claim against the company as stated in the motion made by J. J. Crume in the meeting at 4:30 p. m. on September 11, 1913, then in that event the amounts so remaining are to be paid back, pro rata to the person who paid in the money to said D. M. Young, deed to be made and delivered as soon as cash or notes has been paid. Motion carried unanimously.

                                     F. M. Curyea, President
                

"Attest: D. M. Young, Secretary."

On the same day (September 12, 1913) the Bankers' Trust Company conveyed the land by deed, reciting the consideration therefor to be $1,600 paid by J. Garrison, but the deed recites that the conveyance was to I. J. Garrison, warranting the title to I. J. Garrison. It appears from the testimony and the face of the instrument copied in the record, that the deed, in reciting the payment of the consideration that it was made by I. J. Garrison, but that after writing it, the I. was erased by drawing lines across it. The demand note sued on was signed at the same time by J. Garrison and the deed delivered to him. It was claimed that he controlled something over $20,000 of the stock in the corporation. He, however, contending that only $3,000 was his and the balance his son's (L. L. Garrison). It appears that J. Garrison had conveyed this land to the Bankers' Trust Company, with perhaps other lands, for the stock issued to him. The testimony of all the witnesses is to the effect that J. Garrison was to get this land back under the resolution above set out. The secretary, D. M. Young, testified:

"When J. Garrison turned the note over to me, the company in turn delivered this deed to the land to him. There must have been a kind of difference in the names. It is I. J. Garrison there, and I notice that the I. has been blotted out since we signed and delivered it to him in one place, but this I. J. Garrison was supposed to be the same man as J. Garrison. The man we have sued in this case is the same person as I delivered the deed to, and will say in connection that Mr. Garrison or some attorney — I have forgotten now whether it was Garrison — wrote me and sent me a corrected deed and asked me to sign it to correct that defect, and I wrote that upon the payment of the note I would be glad to do that."

J. Garrison surrendered his stock to the Bankers' Trust Company, which was canceled. The evidence in this case shows the deed was drawn by Judge Humphres, as an attorney, and was taken from his office to the meeting of the officers of the corporation, by J. Hammons, and there signed and delivered to J. Garrison. There is not a word of evidence that we can find that there is such a person in existence as I. J. Garrison. The substance of all the evidence is that it was intended to be a conveyance to J. Garrison that he was the only party intended. There can be no question but the land was conveyed to J....