Miller v. Cree

• Decision Date: 12 December 1941
• Docket Number: No. 2215.,2215.
• Citation: 157 S.W.2d 985
• Parties: MILLER v. CREE et al.
• Court: Texas Court of Appeals

Page 985

157 S.W.2d 985

MILLER v. CREE et al.

No. 2215.

Court of Civil Appeals of Texas. Eastland.

December 12, 1941.

Appeal from District Court, Eastland County; Geo. L. Davenport, Judge.

Suit by J. A. Cree and another, composing the partnership of Cree & Company, against Mrs. Ada Miller and another, in trespass to try title for the purpose of recovering certain realty and, in the alternative, to recover on certain vendor's lien notes, and for foreclosure of the vendor's lien. From an adverse judgment, the named defendant alone appeals.

Affirmed.

J. M. Parker, of Gorman, for appellant.

M. J. Smith, of Gorman, for appellees.

GRISSOM, Justice.

On September 17, 1940, J. A. Cree and H. A. Young, composing the partnership of Cree & Company, filed suit against Mrs. Ada Miller, a widow, and Lloyd Newman. The original petition contained the usual allegations of a suit in trespass to try title. Lloyd Newman was alleged to be the tenant in possession of the land sued for. Following the allegations customary to a suit in trespass to try title, it was alleged that on July 12, 1930, plaintiffs sold and conveyed the land to J. S. Kelly and wife; that as a part of the consideration the Kellys executed and delivered to plaintiffs three vendor's lien notes; that the Kellys kept the interest on the notes paid to July 12, 1939, and on several occasions acknowledged in writing that they owed plaintiffs said notes; that Mr. Kelly died and thereafter, on December 16, 1939, Mrs. Kelly, joined by the other heirs of her deceased husband, conveyed said land to Mrs. Miller; that in said deed Mrs. Miller, as a part of the consideration for the conveyance to her, assumed the payment of said vendor's lien notes; that Mrs. Miller had refused to pay them; that plaintiffs "do hereby disaffirm said notes and elect to recover the land hereinbefore * * * described and * * * bring this action of trespass to try title for the purpose of recovering the same."

In her original answer Mrs. Miller alleged the notes executed by the Kellys were due on July 12, 1931, 1932 and 1933, respectively, and were barred by the four years' statute of limitation at the time of the conveyance of the land to her. She also pleaded the five years' statute of limitation.

On December 3, 1940, plaintiffs filed an amended petition. It consisted of the usual allegations of a suit in trespass to try title. Plaintiffs then alleged, in the alternative, the execution of the deed by Cree and Young to the Kellys, the retention of a vendor's lien and execution of the three vendor's lien notes by the Kellys to the plaintiffs due on July 12, 1931, 1932 and 1933, respectively; that Kelly and wife kept the interest on the notes paid to July 12, 1939, and on numerous occasions in writing acknowledged the justness of their debt to plaintiffs as shown by the notes; that the notes were never barred by limitation because of the acknowledgments of the justness of said debt. Plaintiffs alleged the execution by Mrs. Kelly and others of a deed to said land to Mrs. Miller, on the 16th day of December, 1939; that in said deed Mrs. Miller, as a part of the consideration for the conveyance, assumed the payment of the vendor's lien notes owned by plaintiffs and thereby became liable and bound to pay said vendor's lien notes. In the amended petition plaintiffs prayed for judgment against Mrs. Miller on the notes and for foreclosure of the vendor's lien, and for general relief.

In answer to plaintiffs' amended petition Mrs. Miller filed a general demurrer, specially excepted because in plaintiffs' original petition they had elected to recover the land, and had disaffirmed the notes; whereas, in the amended petition they were seeking foreclosure of the vendor's lien, and alleged that plaintiffs' amended petition constituted a new cause of action. Mrs. Miller further answered by plea of not guilty and a general denial. She then excepted to the amended petition because it appeared therefrom that the notes sued on were barred by the four years' statute of limitation. She then pleaded the five years' statute of limitation and alleged that at the time she purchased the land from Mrs. Kelly and others, plaintiffs' notes were barred. She alleged that plaintiffs in their original petition had elected to recover the land and had "disaffirmed" the notes and were estopped from asserting any right to recover on the notes. She alleged that when she purchased the land and paid a valuable consideration therefor she had no notice of any extension of the notes sued on, and that they had not been extended.

Judgment was rendered for plai...