Matthews v. Towell

• Decision Date: 10 May 1911
• Citation: 138 S.W. 169
• Parties: MATTHEWS v. TOWELL.
• Court: Texas Court of Appeals

138 S.W. 169

MATTHEWS v. TOWELL.

Court of Civil Appeals of Texas. San Antonio.

May 10, 1911.

Appeal from District Court, Matagorda County; Wells Thompson, Judge.

Action by John Matthews against Ike Towell, administrator of John Robbins, deceased, on a rejected claim against the estate. From a judgment sustaining exceptions to the petition, plaintiff appeals. Reversed and remanded.

This is a suit by appellant against appellee on a rejected claim against his testator's estate. Exceptions were sustained to plaintiff's petition, and final judgment rendered against him in favor of the defendant. The questions presented on this appeal from the judgment require a statement of the substance of the pleadings of the parties. The plaintiff alleged, substantially, in his original petition:

That John Robbins died on August 15, 1908, and that Ike Towell is the administrator of his estate, having been duly appointed by the county court of Matagorda county on November 21, 1908. That on October 7, 1901 decedent was indebted to plaintiff in the sum of $2,491.24 evidenced by four promissory notes for the sum of $622.81, dated February 7, 1901, payable, respectively, as follows: The first, one day after date; the second, October 1, 1901; the third, October 1, 1902; and the fourth, October 1, 1903; that each note bears interest from its date at the rate of 10 per cent. per annum, which is payable annually—all past due interest bearing interest at the same rate—each note containing the usual maturity clause, and specially stipulates that if default is made in its payment at maturity, and it is placed in the hands of an attorney for collection, or suit brought thereon, that the maker shall pay 10 per cent. on both principal and interest then due as attorney's fees. That on February 7, 1901, defendant's intestate executed to Jesse Matthews, as trustee, a deed of trust for the purpose of securing plaintiff in the prompt payment of said notes, wherein decedent conveyed to Jesse Matthews, as trustee, the following described two tracts of land situated in Matagorda county, Tex., being out of and a part of the Wm. Rabb league, No. 46 on Coney creek, more particularly described as follows: (Here follows a specific description of each tract.) That said deed of trust recites it is a renewal of a former deed of trust, and for the purpose of securing the sums due on the notes therein described, including the accrued unpaid interest thereon, which sums of money constitute the original purchase money paid by John Matthews for John Robbins, defendant's intestate, at the latter's request, upon the following trust, to wit: That it was proposed, desired, and intended by John Matthews and John Robbins, deceased, that said deed of trust should express the existing fact that the amounts secured thereby were advanced and paid by John Matthews for decedent at the latter's request as a part of the original purchase money for said tract of land; and that it was the purpose and intention of both to secure John Matthews in the repayment of said sum of money by recognizing and fixing a vendor's lien upon said land for the amount so advanced; and that, if said instrument failed or omitted to fully and completely express such intention, plaintiff then alleges that such failure or omission was due to the neglect of the conveyancer in drafting the same, which was signed in its present form by both parties under the belief that it expressed the retention of a vendor's lien upon the property; and that such failure or omission was due to a mistake of the conveyancer who acted for both parties, and it was signed by both under a mutual mistake and under the impression that it contained language admitting the existence of the vendor's lien in favor of plaintiff, John Matthews, on account of the amounts paid on the original purchase price.

That John Robbins, deceased, was to possess and enjoy the use and benefit of said land until default should be made in the payment of said indebtedness or any part thereof, and, upon such default, the trustee, upon the request of plaintiff or holder of said notes, should sell the land to the highest bidder for cash, at public outcry in front of the courthouse door, etc., and make deed to the purchaser with the usual covenants and warranties, receive proceeds of sale and apply the same to the payment of said notes, etc. That the time of payment of each of the notes was extended during the lifetime of decedent, by agreement, from July 1, 1902, for a period of one year, again, on May 4, 1902, for a period of one year, again, on July 18, 1905, for a period of one year, and again, on January 1, 1907, the time of payment was extended for a period of one year, which extensions were all made for a valuable consideration, that the four notes sued on represent an extension of the vendor's lien notes given for a part of the original purchase price for said land, and that the money obtained on account of the extension of said notes was applied as a part of the original purchase price thereof. That John Robbins died without having paid the money evidenced by said notes or any part thereof, and that the same is due and unpaid. That after his death the plaintiff placed the four notes in the hands of attorneys for collection, and has been forced to institute suit on them— plaintiff promised and agreed to pay said attorneys the 10 per cent. provided in the note as collection fees. That such fee is reasonable, and that the services of the attorneys were required for the presentation of the notes as a claim against the estate of the deceased to the administrator, Ike Towell. That the deed of trust referred to is in full force and effect and a valid and subsisting claim against said land. That on April 10, 1909, the claim of plaintiff for the amount due on said notes, principal, interest, and attorney's fees, duly authenticated as required by law, was duly presented to defendant, administrator of said estate for acceptance and allowance, and that defendant refused to allow the same or any part thereof, but rejected the same in writing.

That on February 7, 1901, John Robbins, deceased, was indebted to plaintiff in the sum of $953.30, evidenced by two certain promissory notes for the sum of...