Llano Improvement & Furnace Co. v. Cross

• Decision Date: 29 November 1893
• Citation: 24 S.W. 77
• Court: Texas Court of Appeals
• Parties: LLANO IMPROVEMENT & FURNACE CO. v. CROSS et al.

24 S.W. 77

LLANO IMPROVEMENT & FURNACE CO. v. CROSS et al.

Court of Civil Appeals of Texas.

November 29, 1893.

Appeal from district court, Llano county; W. M. Allison, Judge.

Action by Mrs. T. C. Cross and others against Frank Field and the Llano Improvement & Furnace Company on a note given in part payment for the purchase price of land, and to foreclose a vendor's lien. From a judgment for plaintiffs, defendant the furnace company appeals. Reversed.

The other facts fully appear in the following statement by COLLARD, J.:

Mrs. T. C. Cross, in her individual capacity, joined by her husband, G. B. Cross, sued Frank Field and the appellant on a promissory note for $2,428, dated May 18, 1889, due May 19, 1891, bearing 10 per cent. interest per annum, and stipulating for 10 per cent. attorney's fees if placed in the hands of an attorney for collection; retaining vendor's lien on the land described in the petition, conveyed to Field by her; the note being part consideration for the land; the deed also retaining the lien for the purchase money. The petition shows that she was at the time of the sale the surviving wife of E. R. Beeson, — a feme sole, — and as such duly qualified to administer the community estate of herself and deceased husband, and in her own right conveyed the land to Field, taking the note sued on in part payment therefor, payable to her, (F. C. Beeson.) Since then, she has intermarried with her coplaintiff. The Llano Improvement & Furnace Company purchased the land from Field, with notice of the existing lien. Defendants excepted to the petition upon the ground that Mrs. Cross had lost power to act for the community estate of herself and former husband, and had not made proper parties, praying that the suit abate. Defendants also filed a sworn plea in abatement, alleging the facts before stated, showing that there are two children of the former marriage, John and Ruth Beeson, whose residences are stated in the state, — the latter a minor, who has no guardian, and who own one-half of the note sued on, as sole heirs of their father's half of the community, (the land sold, and the note, being community of the former marriage;) that, by her last marriage, plaintiff Mrs. Cross lost control of the community estate of the former marriage, and now has no authority to prosecute the suit without joining the two children. Defendants also claimed, by sworn plea, that the suit should temporarily abate because of a suit pending for the land in the circuit court of the United States, in the western district of Texas, by parties against appellant, plaintiff Mrs. T. C. Cross, and the said children, — Mrs. Cross being impleaded therein on her warranty in the conveyance to Field, $4,100 having been paid to her of the purchase price of the land, — in which suit, it is alleged, plaintiffs therein will probably recover all or a portion of the land, in which event Mrs. Cross would not be able to respond upon her warranty; prayer that this suit abate until that suit is determined. The court below overruled defendants' exceptions to the petition, and sustained exceptions of plaintiffs to defendants' pleas in abatement, and, defendants refusing to answer further, gave judgment for plaintiffs for amount, principal and interest, due on the note, and attorney's fees, foreclosed the lien on the land as prayed for by plaintiffs, with order of sale providing that, if there should be any excess of the proceeds of sale after satisfying the judgment and costs, it should be paid by the sheriff to defendant Field. The Llano Improvement & Furnace Company has appealed, assigning the rulings of the...