Neese v. Riley

• Decision Date: 20 May 1890
• Citation: 14 S.W. 65
• Parties: NEESE v. RILEY.
• Court: Texas Supreme Court

14 S.W. 65

NEESE v. RILEY.

Supreme Court of Texas.

May 20, 1890.

Commissioners' decision. Error from district court, Guadalupe county.

John Ireland, for plaintiff in error. W. E. Goodrich, for defendant in error.

COLLARD, J.

This suit was instituted by James Riley, the defendant in error, against Isaac Neese, plaintiff in error, upon two promissory notes, and to foreclose vendor's lien upon 90 or 93 acres of land described in the petition. The petition alleges that Isaac Neese, on the 1st of December, 1885, bought of A. J. Fry a tract of land, and in consideration therefor made, executed, and delivered to Fry two promissory notes, dated December 1, 1885, for $125 each, bearing 10 per cent. interest from date, and containing a stipulation that, should the notes not be paid at maturity, Neese should pay 10 per cent. attorney's fees for collecting the same, both of which notes, it is alleged, were transferred to plaintiff below (Riley) by Fry for a valuable consideration. The suit is on only one of these notes first executed, falling due January 1, 1887. It is further alleged that in further consideration for the land Neese, on January 1, 1886, made, executed, and delivered to petitioner (Riley) his note for $100, with 12 per cent. interest, payable December 1, 1886, with a stipulation that, in case the note should be collected by legal process, 10 per cent. additional on the principal should be added as attorney's fees. The notes are attached to the petition, and made a part thereof. It is alleged that Neese has failed to pay the same, or any part thereof; that they are a vendor's lien on the land, which is described as 131 acres, less 40 acres sold to another party on a given date. After these allegations the prayer follows for citation, judgment for principal and interest on the notes, the 10 per cent. attorney's fees, and order of sale to satisfy the vendor's lien. The notes sued on are as follows:

"San Antonio, Tex., December 1st, 1885. $125.00. On or before the 1st day of January, 1887, I promise to pay to the order of A. J. Fry, at banking-house of F. Groos & Co., in the city of San Antonio, Texas, one hundred and twenty-five dollars, and ten per cent. interest per annum from date, being in part payment of 90 acres of land out of the Francisco Caravajoe league in Gaudalupe county, on the west side of the Guadalupe river, this day bought of said Fry; and this note is fully acknowledged by me to be a vendor's lien on the said land, described in a deed with even date herewith, executed by said Fry to me; and in case of a failure by me to pay this note and interest promptly at maturity, I further promise to pay the attorney's fees for the cost of collection, to-wit, ten per cent.

                                                 his
                     [Signed]            "ISAAC   X   NEESE."
                                                 mark
                

It is indorsed by A. J. Fry to James Riley or order, "without recourse." The other note is as follows:

"$100.00. Seguin, Tex., January 1, 1886. On the first day of December, A. D. 1886, I promise to pay to James Riley, or to ______ order, the sum of one hundred dollars, together with interest thereon from the 1st day of January, 1886, at the rate of 12 per cent. per annum, and interest payable annually. This note is made payable at the town of Seguin, and it is hereby agreed that in case the interest is not paid promptly when due, then, and in such case, it shall become a part of the principal, and bear interest as such at the rate herein stipulated; and it is further agreed that, in case this note is collected by legal process, ten per cent. additional on the principal shall be added as attorney's fees. This...