Noel v. Clark

• Decision Date: 16 January 1901
• Parties: NOEL v. CLARK et al.
• Court: Texas Court of Appeals

60 S.W. 356

NOEL v. CLARK et al.

Court of Civil Appeals of Texas.

January 16, 1901.

Appeal from district court, McLennan county; Marshall Surratt, Judge.

Action by E. A. Noel against N. B. Clark and others. From a judgment in favor of defendants N. B. Clark and others, and in favor of plaintiff against Lewis Clark, plaintiff appeals. Reversed.

Suit filed September 26, 1899, by appellant against N. B. Clark and Ione Clark and Lewis and Mollie Clark on two promissory notes executed by N. B. and Ione, October 1, 1892, to Lewis Clark, for $200 each, due, respectively, at three and four years, bearing 10 per cent. interest per annum, and providing for payment of 10 per cent. attorney's fees, each reciting that it was given as part consideration of a lot in the city of Waco, retaining vendor's lien to secure payment. Plaintiff averred that she purchased the notes for value, before maturity, Lewis and Mollie Clark indorsing them. It is alleged by plaintiff that October 11, 1892, N. B. and Ione Clark conveyed the lot to Lewis and Mollie Clark, and they (Lewis and Mollie) assumed the payment of the two notes, sued on, transferred to plaintiff; the deed of N. B. and Ione to Lewis and Mollie retaining vendor's lien to secure the payment of the notes. Plaintiff further alleged that on August 22, 1892, Lewis Clark, in purchasing the lot from Harry Chamberlain, as part payment executed notes for $283.35, which last notes were purchased by plaintiff before maturity, and were secured by deed of trust on the lot; that the trustee sold the lot, plaintiff becoming the purchaser, and, in making the deed, through inadvertence and mistake, indorsed each of the $200 notes sued on as paid by the deed to the land "described by trustee, Jan. 2, 1894," the indorsement being made on the assumption that plaintiff had become the owner of the property by virtue of the conveyance of the trustee, but subsequently in a cause in said district court styled Mollie Clark against W. L. Burke and plaintiff, and an appeal to the court of civil appeals, it was held that the conveyance by the trustee was invalid, because of failure of the trustee to sell as directed by the deed of trust, thus leaving the two notes, for $200 each, in full force in favor of plaintiff against Lewis and Mollie Clark, who had assumed their payment. Plaintiff prayed for judgment, and foreclosure of his lien. Defendants N. B. and Ione Clark pleaded statute of limitations of four years, upon the ground that, when the land was reconveyed by them to Lewis and Mollie, it was understood between them (N. B. and Ione and R. M. and H. C. Chamberlain) that the notes were to be canceled, the Chamberlains agreeing that they should be canceled, and the lot reconveyed to Lewis and Mollie free therefrom, and averring that any stipulation to the contrary in the deed is fraudulent. Defendants N. B. and Ione also alleged that, in their reconveyance to Lewis and Mollie, they became sureties, and plaintiff extended the time of payment of the notes, and thereby released them. Defendant Mollie Clark set up her liability only as indorser of the notes, and that her liability as such had not been fixed by suit or protest, and that the debt sued on was the debt of N. B. and Ione, and that she had not promised to pay them in writing, pleading the statute of frauds. She also set up the two and four years statute of limitations, and that the property was her homestead; that its conveyance was a scheme of her husband, Lewis, and N. B. Clark, plaintiff, and H. C. and R. M. Chamberlain, to enable them to borrow money on her home; and that she was deceived and defrauded into signing the deed by the parties, and received no part of the purchase money. She also pleads res adjudicata, based on her suit against W. L. Burke and plaintiff, in which neither N. B., Ione, nor Lewis Clark was a party. The trial, without a jury, resulted in judgment in favor of defendants N. B., Ione, and Mollie Clark, and in favor of plaintiff against Lewis Clark for $767.58, being the amount due on the notes, foreclosure of vendor's lien on one half undivided interest in the lot, awarding the other half of the lot to Mollie Clark free from the lien. Plaintiff has appealed.

The findings of fact of the court below are as follows, and we find the same facts, except as herein stated: "I find that on the 22d day of August, 1892, H. C. Chamberlain executed a deed to Lewis Clark to the lot on which foreclosure is herein sought, and on which said Clark then lived with his family, said Clark at the same time executing to Chamberlain two notes, for about $141 each, in part payment for said lot, and a deed of trust on said lot to secure the payment of said notes, in which E. M. Ewing was made trustee. On the 1st day of October, 1892, Lewis Clark and his wife, Mollie Clark, who were still living on said lot, and occupying the same as a homestead, conveyed the same to N. B. Clark, reciting a cash consideration in the deed, and also the execution of two notes here sued upon, for $200 each, drawing ten per cent. per annum interest from date, interest payable semiannually, and providing that, upon default of payment of interest when due, the holder thereof might, at his option, declare said notes due, and proceed to collect the same; a lien being reserved in the face of said deed and notes to secure the same. Lewis Clark and his wife, Mollie Clark, indorsed said notes, and immediately, or within two or three days thereafter, transferred them for a valuable consideration to plaintiff, the negotiations for the transfer having been conducted on the part of plaintiff through her father, D. D. Noel, who paid plaintiff's money therefor, and received said notes for her, plaintiff not having been consulted by her said father in the purchase, and having no knowledge thereof at the time. Lewis Clark and Mollie Clark left on the following night, taking their family, and went to the state of California, where Mollie left Lewis and her children, fourteen months thereafter, and returned to Waco. On the 11th day of October, 1892, N. B. Clark and his wife, Ione Clark, reconveyed said lot to Lewis Clark and wife, Mollie Clark, the latter assuming the payment of the notes here sued on as part consideration for the reconveyance. This reconveyance was executed after Lewis and Mollie Clark had gone with their family to California, and was forwarded to them by their agent, and was received by Mollie Clark in California. I find that the conveyance by Lewis Clark and his wife to N. B. Clark was not intended by the parties to that deed as an actual conveyance of the property, but was a scheme adopted by Lewis Clark and his wife to raise money on their homestead to go to California on, but that the plaintiff in this case, nor her father, D. D. Noel, had no knowledge of said facts, but bought said notes believing said transaction to have been a bona fide conveyance of said lot. Thereafter, and before the 2d day of January, 1894, the plaintiff herein purchased the two $141 notes from Mayfield, as assignee thereof, and a short while prior to said date D. D. Noel, acting for his said daughter, handed an envelope containing said trust deed, and the two $141 notes secured thereby, and also the two $200 notes herein sued upon, to the trustee, E. M. Ewing, and instructed him to sell the property under said deed of trust, and in accordance with its terms; and that, purporting to act under said deed of trust, the trustee sold said property on the 2d day of January, 1894, and it was bid in by the plaintiff for the sum of $800, and the trustee thereupon executed to the plaintiff a deed therefor, reciting therein that said two notes for $141 and the two notes herein sued upon had been canceled in payment for said land. The trustee, Ewing, who was also an attorney at law, when Noel came in to get the deed to the property, suggested to Noel that, as he had purchased the property, the two notes here sued upon might as well be canceled, which suggestion was acquiesced in by Noel, and all four of the notes were indorsed, `Paid by deed to the land,' written by the trustee, but not signed, and all were then returned to Noel by the trustee. No money was paid by Noel to the trustee except expenses of sale, the notes being canceled in lieu of the amount bid. After Mollie Clark returned from California, she moved back onto the land, and was in possession thereof when sold, and, when plaintiff attempted to secure possession under a judgment in his favor in a forcible entry and detainer proceeding, said Mollie Clark individually, in cause No. 6,666 in this court, alleging that her husband refused to join her, sued plaintiff, alleging that the property was her homestead, and praying an injunction restraining plaintiff from taking possession of said property under said forcible entry and detainer proceeding. She secured a temporary injunction, which was thereafter dissolved, and plaintiff was placed in possession of the lot, and Mollie Clark thereafter amended her petition, and sued to recover the land and for rents. To this plaintiff replied in his original answer, setting up the fact as to the notes held by him and the sale under the trust deed, her purchase, and the conveyance to her by the trustee, and that the two $141 notes, and also those here sued upon, had been canceled in part payment for the land when conveyed to her by the trustee, and that the deed she received recited such cancellation, and was so asserted by her in said suit until her deed was declared void by the court of civil appeals, on the 10th day of February, 1897, in an appeal in said cause. That cause came to final trial on the ____ day of ____, 1900, in this court, and upon exception being sustained to a part of defendant Noel's answer, plaintiff herein, she then for the first time amended, filing a trial amendment, praying in the alternative for foreclosure of the two $141 notes, and judgment was entered therein...