Lanier v. Faust

• Decision Date: 26 May 1891
• Citation: 16 S.W. 994
• Court: Texas Supreme Court
• Parties: LANIER v. FAUST <I>et al.</I>

16 S.W. 994

LANIER v. FAUST et al.

Supreme Court of Texas.

May 26, 1891.

Appeal from district court, Collin county; H. O. HEAD, Judge.

Abernathy & Beverly, for appellant. Jenkins Pearson, for appellees.

GAINES, J.

Appellee Douglass, on the 5th of December, 1883, sold to one Wilson a tract of land consisting of 79 acres for $50 in cash and $400 on a credit, for which the vendee executed his three promissory notes, — two for $100 each, and one for $200, payable one, two, and three years after date, respectively. Douglass executed a deed to Wilson for the land, but expressly reserved in the conveyance a lien upon it to secure the payment of the unpaid purchase money. Wilson not being able to pay the first note when it fell due, Douglass agreed to extend the time for its payment another year. Before the time for the extension had elapsed, Wilson sold the north half of the land to one Beuhler and one Rutherford, on a credit, taking their notes, and retaining a lien upon the land to secure their payment. At the same time Wilson also sold the south half of the tract to appellee Faust, on a credit, and for the purchase money therefor Faust executed to him the four promissory notes which are the foundation of this action. Wilson made Faust a deed, but retained a lien upon the land conveyed, to secure the payment of the notes. They were for $110 each, and were due December 1, 1885, December 1, 1886, December 1, 1887, and December 1, 1888, respectively. These notes, together with those given by Beuhler and Rutherford, were transferred by Wilson to one Taylor. When the second note executed by Douglass to Wilson fell due, the former again called upon the latter for the payment. Wilson refused to pay, and told Douglass he would have to look to the land for his money. Douglass then went to Faust, who also refused to pay the notes made by Wilson, but offered to reconvey to Douglass so much of the land as had been conveyed to him. Douglass went to Taylor, who then held the notes transferred to him by Wilson, and was told by Taylor that he did not see where there was any money to him in paying the notes, and that he, Douglass, could make his money out of the land, and that he would give him no trouble about it. Thereupon Faust reconveyed the land bought by him to Douglass. The deed executed by Faust recited a consideration of $100, but no money was in fact paid or promised by Douglass, the grantee. Some 12 months after this transaction, Taylor sold and transferred all the notes assigned to him by Wilson to appellant, appellant paying him therefor the sum of $45. Appellant brought this suit against the appellees upon the notes executed by Faust to Wilson, and to foreclose the lien upon the land for which they were given. Faust made no defense, and there was a judgment rendered against him upon the notes, but an enforcement of a lien upon the land was denied. The court found the facts as stated above, and also found that when the appellant purchased the notes he had notice of the circumstances attending the several transactions.

When the defendant Douglass offered to testify that upon the maturity of his second note he went to Wilson, and Wilson told him he could not pay it, the plaintiff objected to the testimony, upon the ground that it was "hearsay, and res inter alios acta." The court overruled the objection, and the ruling is assigned as error. We are of the opinion that the evidence was properly admitted. A deed conveying land and reserving a lien upon it for the unpaid purchase money is treated in this court as an executory contract, and it is accordingly held that, whenever the vendee refuses to pay, the vendor may claim an immediate...