Mansur & Tebbetts Implement Co. v. Beer

• Decision Date: 27 April 1898
• Citation: 45 S.W. 972
• Parties: MANSUR & TEBBETTS IMPLEMENT CO. v. BEER et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

Page 972

45 S.W. 972

MANSUR & TEBBETTS IMPLEMENT CO. v. BEER et al.¹

Court of Civil Appeals of Texas.

April 27, 1898.

Appeal from district court, Hill county; J. M. Hall, Judge.

Action by the Mansur & Tebbetts Implement Company against H. & B. Beer. Judgment for defendants, and plaintiff appeals. Reversed.

McCormick & Spence, for appellant. Scarborough & Scarborough, for appellees.

FLY, J.

This is an action of trespass to try title to 253 acres of land out of the Langford Fitzgerald survey, in Hill county, instituted by appellant against appellees. The case was tried by the court, and resulted in a judgment for appellees. We find that in February, 1891, D. Landman conveyed the land in controversy to S. Scogan for $500 in cash, and four notes, for $500 each, due February 1, 1892, 1893, 1894, and 1895, respectively. A vendor's lien was reserved in each note as well as the deed to secure payment of deferred payments. Two of the notes, the one first due and the one last due, were, in the early part of 1892, indorsed by Landman to appellees, to secure a debt of $1,000 due by Landman to appellees. In December, 1892, Landman instituted suit in the district court of McLennan against appellees, alleging that the debt evidenced by his note for $1,000 grew out of a gambling transaction, and was therefore void, and praying for its cancellation and for a writ of injunction to restrain them from negotiating the vendor-lien notes. The case was tried in the district court, and, having finally found its way to the supreme court, it was held that the parties would be left in the same position in which they had placed themselves, and the cause was remanded. Beer v. Landman, 88 Tex. 450, 31 S. W. 805. After the case was returned to the district court, on September 3, 1895, H. & B. Beer filed a cross bill, making Scogin and Esters, whose connection with the case is hereinafter explained, parties in addition to Landman, in which it was sought to foreclose the vendor's lien on the notes which had been indorsed to them by Landman. The lien was foreclosed, an order of sale was issued, and in March, 1896, the land was sold, and appellees became the purchasers, and the deed of the sheriff was duly recorded on March 7, 1896. The deed from Landman to Scogin was recorded in the deed records of Hill county on February 25, 1892, and in said deed a vendor's lien was retained to secure the payment of the notes.

In January, 1894, while the suit was pending between Landman and H. & B. Beer, Scogin and wife, for the recited consideration of $2,000, reconveyed the land in controversy to Landman. It was filed for record on January 17, 1894. On January 16, 1894, Landman conveyed the land in controversy to Charles Esters, reciting the consideration to be $500 in cash and two notes, for $1,000 each, due November 1, 1894, and November 1, 1895. Landman, being indebted to appellant, in 1894 agreed, in consideration of an extension of time on his note, to turn over the Esters note to appellant as collateral security. This offer was accepted, and on October 24, 1894, Esters, in consideration of an extension of his notes, executed three notes to cover the principal and interest of his original notes, and these notes were indorsed by Landman in blank, and placed in the hands of appellant. On April 13, 1896, appellant herein instituted suit against Landman and Esters, a foreclosure of the vendor's lien being prayed for. On September 29, 1896, appellant obtained judgment of foreclosure, and an order of sale was issued. The land was sold, and appellant became the purchaser, and a deed was made to it by the sheriff, and was duly recorded.

It was alleged in the petition of appellant that it was a corporation chartered under the laws of the state of Missouri, doing business in the state of Texas, but there was no allegation that it had a permit to do business. Appellant proved, without objection, that it had a permit to do business in Texas for 10 years from September 4, 1889. No attack was made by appellees upon appellant in the lower court on the ground that it could not sue by reason of not alleging that it had a permit to do business in Texas, but such contention is made for the first time in this court. It has been held by the supreme court (Taber v. Association, 40 S. W. 954) that a foreign corporation cannot sue in Texas without alleging and proving that it has a permit to do business in the state, and, if this construction of the statute be correct, then the question can be raised here for the first time. We are of the opinion, however, that the statute is not applicable to the case before us. If it could be held that the status of the corporation would be fixed by the circumstances surrounding the debt due by Landman to appellant, the reply would be that there is no testimony...