Leavell v. Seale

• Decision Date: 17 February 1898
• Citation: 45 S.W. 171
• Parties: LEAVELL v. SEALE. SEALE v. LEAVELL.
• Court: Texas Court of Appeals

45 S.W. 171

LEAVELL v. SEALE.

SEALE v. LEAVELL.

Court of Civil Appeals of Texas.

February 17, 1898.

Appeal from district court, Leon county; J. M. Smither, Judge.

Suit by J. M. Seale, guardian, against George W. Leavell and another. From judgment for plaintiff for less than prayed for, he appeals, and defendant Leavell brings error. Reversed on plaintiff's appeal.

Dean & Dean, for appellant. J. M. Chatham, for appellee.

PLEASANTS, J.

These two appeals are from a judgment rendered in favor of J. M. Seale, guardian of the estate of J. I. Proctor, for $286.04, with a decree foreclosing vendor's lien on 200 acres of land, the property of George W. Leavell. From the judgment, the plaintiff in the suit, J. M. Seale, prosecuted an appeal; and the defendant George W. Leavell afterwards sued out a writ of error, and brings the case here for revision under that writ. Both appeals were submitted together, with request by both parties that this court would consider them together, and dispose of them both at the same time; and this we have done. There is no statement of facts in either of the transcripts which we can consider. There is what purports to be a statement of the facts in each record filed in the court, but there is no approval by the trial judge of either statement. We have, however, conclusions of fact and law, as found by the judge; and from these conclusions of fact, and from the statement of the nature and result of the suit given in the briefs of the appellant and the plaintiff in error, we find the case to be briefly this: The plaintiff, as guardian of the estate of J. I. Proctor, sued to recover on a promissory note, and to foreclose a vendor's lien, for the amount of the note and interest, on a tract of land described in the petition, and for the price of which, in part, the note was executed. The note sued on was given in lieu of one executed by the defendant D. A. Sullivan for the sum of $425, in part payment of the tract of land described in the petition, which was sold to the defendant Leavell by Sullivan, and upon which the vendor's lien was expressly reserved. This note was transferred by Sullivan to McDaniel & Stell; and by them, after its maturity, to the plaintiff; and, before this transfer was made, the defendant Leavell deposited with Sullivan school vouchers of the alleged value of $150, with instructions that the proceeds of these vouchers should be applied to the payment of the note. This was not done by Sullivan; but, when he transferred the note, he delivered the vouchers to McDaniel & Stell with the understanding that the proceeds of these vouchers should be applied towards the payment of the note. This is admitted by McDaniel & Stell; but they testify that, by a subsequent agreement made with Leavell, the proceeds of the vouchers were, with the exception of some $20 which were paid over to Leavell, applied to other indebtedness of his. The defendant admits the execution of the note sued on, and that it was given in lieu of the note of $425 executed to Leavell in part payment of the land sold him by Sullivan; but he denies that he ever authorized McDaniel and Leavell to apply the proceeds of his school vouchers in any other way than as a payment on that note. And he pleaded these facts in bar pro tanto of plaintiff's suit; alleging, in connection therewith, that, when plaintiff purchased the note from McDaniel and Leavell, he well knew that defendant was entitled to this credit of $150, with interest on that sum from the time it should have been credited on the original note, and that, when he executed the note sued on, it was understood and agreed between plaintiff and defendant that the plaintiff would...