Payne v. Beaumont
Decision Date | 25 October 1922 |
Docket Number | (No. 6788.) |
Citation | 245 S.W. 94 |
Court | Texas Court of Appeals |
Parties | PAYNE et al. v. BEAUMONT et al.<SMALL><SUP>*</SUP></SMALL> |
Appeal from District Court, Cameron County.
Suit by Mrs. Daisy Beaumont and others against Mrs. Betty H. Payne and others. Judgment for plaintiffs, and defendants appeal. Reversed and remanded.
Seabury, George & Taylor, of Brownsville, for appellants.
Graham, Jones, Williams & Ransome, of Brownsville, for appellees.
This was a suit instituted on May 18, 1921, by Mrs. Daisy Beaumont and her husband, C. W. Beaumont, and J. M. Compton, filing an original petition in which they sue Mrs. Bettie H. Payne, Adlie Owen Payne, Harless Neville Payne, Nora Price Calloway, and her husband, I. A. Calloway, Ernest Bedford Payne, Ollie Mae Payne, and Lyle Payne, and allege Ollie Mae Payne and Ernest Bedford Payne and Lyle Payne are minors, and Mrs. Bettie H. Payne is sued as the guardian for said minor defendants, said suit being instituted for the purpose of recovering on five promissory notes executed by H. E. Payne on November 20, A. D. 1912, and delivered to Mrs. Daisy Beaumont as part consideration of the purchase price of 160 acres of land described in plaintiff's petition.
Soon after the purchase of said property by said H. B. Payne, who was the husband of Mrs. Bettie H. Payne and the father of the other appellants in this case, with the exception of I. A. Calloway, who was his son-in-law, the said H. B. Payne died intestate, and left surviving him his wife, Bettie H. Payne, and his children as named in this suit, and on or about the 20th day of March, A. D. 1917, Mrs. Bettie H. Payne was appointed guardian of the estates and persons of her minor children, Harless Neville Payne, Nora Price Payne, Ernest Bedford Payne, Ollie Mae Payne, and Lyle Payne, by the county probate court of Cameron county, the county in which H. B. Payne died and was living at the time of his death, and qualified as such guardian, and that thereafter the said Mrs. Bettie H. Payne, acting for herself and as guardian of the estate of her minor children, with permission from the county probate court of Cameron county, and Adlie Owen Payne, acting in his own behalf, entered into a contract with Mrs. Daisy Wilson and J. H. Compton, whereby the amount of said above-described notes and the time of payment were renewed and extended as follows:
As the trial court instructed a general verdict for appellees, it raised a fundamental error, though the supposed errors have been properly assigned, requiring us to give a very careful examination of both the pleadings and evidence to support such ruling. The error is raised very fully in various assignments and propositions made by appellants.
It is well, in considering this case, to start out with the general proposition that the legal title remains in the vendor until all the purchase money is paid (White v. Cole, 87 Tex. 500, 29 S. W. 759), and that the vendor may sue to recover the land on his legal title or elect to sue for specific performance of the contract. In this case the latter course was pursued. In such a case the contract is executory so long as the purchase price remains unpaid. Kennedy v. Embry, 72 Tex. 387, 10 S. W. 88; Ogburn v. Whitlow, 80 Tex. 241, 15 S. W. 807; Lanier v. Foust, 81 Tex. 189, 16 S. W. 994.
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