Poe v. Hall

• Decision Date: 19 April 1922
• Docket Number: (No. 1919.)
• Citation: 241 S.W. 708
• Parties: POE et al. v. HALL et al.
• Court: Texas Court of Appeals

Page 708

241 S.W. 708

POE et al. v. HALL et al.

(No. 1919.)

Court of Civil Appeals of Texas. Amarillo.

April 19, 1922.

Appeal from District Court, Hale County; R. C. Joiner, Judge.

Suit by J. E. Hall and another against H. C. Poe and others. Decree for plaintiffs, and defendants appeal. Reformed and affirmed.

Butts & Wright, of Cisco, for appellants.

Williams & Martin, of Plainview, and Stinson, Coombes & Brooks, of Abilene, for appellees.

HUFF, C. J.

J. E. Hall and R. H. Holton sued W. E. Spencer, J. E. Spencer, and H. C. Poe and wife, N. G. Poe, on two notes, one for $5,000 and one for $5,240, principal, interest, and attorney's fees, each bearing date May 20, 1920, payable to the order of M. L. McKee, due and payable on or before five years after date, executed by W. E. and J. E. Spencer, said notes evidencing part of the purchase money due on section 96, block 2B, Swisher county, and section 126, block A, in the same county, and to foreclose the vendor's lien, the notes each retaining a vendor's lien on the respective tracts of land of which they were part of the purchase price thereof. A vendor's lien was also retained in the deed conveying the land, securing the notes as part of the purchase money. Each of the notes contained the following clause:

"It is understood and agreed that failure to pay this note or any installment of interest thereon when due shall, at the option of the holder of them, or any of them, mature all notes this day given by W. E. and J. E. Spencer to said M. L. McKee in payment for said property, and it is hereby specifically agreed if this note is placed in the hands of an attorney," etc.

Each of the notes provided for the payment of eight per cent. interest per annum on the principal, payable annually, as it accrued, both principal and interest payable at Plainview, Tex. Past-due interest bears interest from maturity at the rate of ten per cent. per annum. The first installment of interest fell due on the 20th of May, 1921, at Plainview, Tex. The defendants, though requested, failed and refused to pay, and thereupon plaintiffs, who are the owners and holders of the note, by proper assignments, elected to mature the principal thereof. It is alleged the Spencers conveyed the land to H. C. and N. G. Poe, by warranty deed, and that they assumed payment of the notes as part of the consideration therefor, to secure which a vendor's lien was retained.

W. E. and J. E. Spencer answered, admitting the execution of the notes and deeds, but otherwise denying the allegations of the petition, and by cross-action against their codefendants, H. C. and N. G. Poe, allege the sale and execution of the deed to the Poes, wherein the latter assumed as part of the consideration the payment of the notes, and they ask, if judgment is rendered on the notes, that they have judgment over against their codefendants for any amount which they may be required to pay.

The appellants, the Poes, by answer among other pleadings, allege plaintiffs ought not to recover on the accelerating clause of the notes for the reason that a short time before the May, 1921, interest installment became due H. C. Poe went to Plainview, in Hale county, where the notes were made payable "and was not able to and could not find or locate the owner or owners of the notes; that he was then ready, able, and willing to pay and would have paid the same if he could have located and found the owners of the notes"; that the deed conveying the land was filed for record in Hale county, before the interest installment was due; that plaintiff knew, or by the exercise of ordinary care and diligence should have known, that the Poes had purchased the land and assumed the payment of the notes, and could and would have learned of their place of residence, etc.; that the failure to pay the interest was not due to any fault or negligence on their part, but wholly to the plaintiffs' fault and negligence; that it would be unjust to permit plaintiffs to declare the principal of said notes matured against them and to foreclose the lien. They aver they are ready and willing to pay the past-due interest and the accrued interest and offer to do so upon the court ascertaining the amount thereof.

The notes introduced in evidence are in terms as alleged in the petition. The deed from J. E. and W. E. Spencer, dated March 4, 1921, conveys the land described in the petition to N. G. Poe, for the recited consideration of $51,000, paid and secured to be paid "out of the moneys and funds belonging to her separate estate, whereof approximately the sum of $24,212.64 cash in hand paid by the said N. G. Poe, the receipt whereof is hereby acknowledged, and the assumption by the said N. G. Poe of four certain promissory notes, described as follows." Two of the notes described in the deed were the notes sued on, and two other notes were not involved in this suit. The deed specifically refers to the acceleration clause in the notes, and the deed further recites:

"In the assumption of the payment of the four notes described the said N. G. Poe is joined by her husband, H. C. Poe, and the assumption extends to all interest accrued and to accrue on said notes, and also to the various clauses set forth in said notes, providing for interest thereon and interest on interest, attorney's fees, etc. The said N. G. Poe, together with her husband, H. C. Poe, obligate and bind themselves, as part of the consideration for this conveyance, to pay each and all of the four notes above described, together with interest accrued and to accrue thereon, according to the tenor and effect of said notes, and at the maturity dates thereof, and to pay all taxes and assessments against the hereinafter described lands, have granted, sold, and conveyed, and by these presents do grant, sell, and convey, unto the said separate estate of the said N. G. Poe, all," etc.

After the habendum, warranty, and vendor's lien clause, the following clause is added:

"To evidence the rejoinder of the said H. C. Poe with the said N. G. Poe of the assumption above set forth, the said N. G. Poe and H. C. Poe execute and acknowledge this instrument as grantees, and this instrument shall not be considered as executed by the grantors and by them delivered until so signed and acknowledged by the said N. G. Poe and her husband, H. C. Poe, in the manner provided by law."

The deed was signed by the grantors and by the grantees, N. G. Poe and H. C. Poe, and properly acknowledged by all the parties thereto. The deed from M. L. McKee and wife to W. E. and J. E. Spencer to the land in question, dated May 20, 1920, recites the note sued on is part of the consideration therefor and retains therein the vendor's lien. This deed was duly recorded. The appellees herein also introduced an assignment of the two notes sued on, executed by M. L. McKee to the appellees, R. H. Holton and J. E. Hall, for the recited consideration of $15,969 together with his right, title, and interest in the land. This instrument is dated July, 1, 1920, and acknowledged October 23, 1920, and duly recorded. The oral testimony relates more particularly to the motion for continuance and the action of the court thereon. We will note such thereof as shall be considered necessary under the assignment based upon the court's action in overruling the motion to continue. The trial court rendered judgment for appellees, Hall and Holton, against W. E. and J. E. Spencer, H. C. and N. G. Poe, jointly and severally, for the sum of $12,454.26, principal, interest, and attorney's fees, due on the notes declared upon, foreclosing the lien as it existed May 20, 1920, on the described tracts of land, and ordering sale of the land to satisfy the judgment so rendered. If the land should sell for more than sufficient to pay the judgment, the excess was to be paid over to N. G. Poe, but, if it did not sell for enough, the officers should make the balance due as under execution, directing that it first issue against H. C. Poe and N. G. Poe, or either of them, before issuing against W. E. and J. E. Spencer. It was also decreed W. E. and J. E. Spencer recover from H. C. Poe and N. G. Poe jointly and severally any amount paid by them on the judgment, for which they may have their execution.

This appeal is predicated first upon the action of the trial court in failing to grant a continuance or postponement upon H. C. Poe's application because of his sickness and inability to be present at the trial. H. C. Poe stated in his application for continuance, sworn to by his attorney, that it was his first application; that he could not safely go to trial on account of his forced absence from court, occasioned by his then sickness rendering him physically unable to attend court, which application was accompanied by the certificate of an attending physician. It is stated, aside from, and in addition to, his right to be personally present at the trial and to consult and advise with his attorney during trial:

"That he is an important witness; that his testimony cannot be obtained from any other source; "that, if this defendant were able to be personally present as a witness in the trial of this cause, then he would testify that he made every possible effort to locate and find the holders and owners of the notes herein sued upon for the purpose of paying the interest thereon at the date of maturity, thus preventing acceleration of the maturity of the principal, and that, if this defendant could have found and located the holder and owner of said notes, then he was ready, willing, and able to pay and would have paid the interest thereon at or before maturity of said interest, and thus prevented the maturity of said notes, and that this continuance or postponement of this trial of this case is not sought for delay, but that justice may be done."

The plaintiffs filed a controverting affidavit. They state therein that the notes were assigned to them and duly recorded in Swisher county,...