Power v. Westhoff
| Decision Date | 21 February 1928 |
| Docket Number | (No. 9090.) |
| Citation | 4 S.W.2d 274 |
| Parties | POWER et ux. v. WESTHOFF. |
| Court | Texas Court of Appeals |
Appeal from District Court, Jackson County; John M. Green, Judge.
Suit by Frances Westhoff against Frank Power and wife. Judgment for plaintiff, and defendants appeal. Affirmed.
Fly & Ragsdale, of Victoria, for appellants.
Proctor, Vandenberge, Crain & Mitchell, of Victoria, and Jno. T. Vance, of Edna, for appellee.
This suit was brought by Miss Frances Westhoff against Frank Power and his wife, Ellen, on the 9th day of February, 1927, to recover upon a certain promissory note for the sum of $2,000, executed by Frank Power on August 31, 1918, in part payment for a certain lot in the town of Edna, Tex., which is fully described in the plaintiff's petition, for a foreclosure of the vendor's lien retained to secure payment of said note, and for attorney's fees. Said note being due and payable on the 31st day of August, 1920.
The plaintiff alleged:
That defendant Frank Power paid the interest due on the note to the 31st day of August, 1920, and on said date secured from the owner and holder thereof an extension of the same to the 30th day of March, 1921, the same being in writing upon the note. That Frank Power paid the interest due on the note to April 12, 1921, and the owner of the note, by a duly executed instrument in writing, extended the maturity date thereof and the vendor's lien to April 12, 1922, which said instrument provided that the note should bear interest from the 12th day of April, 1921, at the rate of 10 per cent. per annum. That on November 3, 1925, Frank Power, to procure indulgence on the part of plaintiff, agreed to pay the indebtedness to plaintiff in monthly installments of $50 each month until the whole indebtedness was paid. That, in pursuance of said agreement, he paid $50 on said indebtedness on each of the following dates:
November 3, 1925, by cash.................... $50 00
December 5, 1925, by cash.................... 50 00
March 2, 1926, by cash....................... 50 00
March 30, 1926, by cash (Ed Argo for mules).. 50 00
June 3, 1926, by cash........................ 50 00
That, as Power had not promptly paid said installments as he had agreed to do, plaintiff, on July 10, 1926, wrote a letter to him calling his attention to his failure to promptly pay the $50 monthly, to which letter the defendant Frank Power replied as follows:
On August 3, 1926, he paid $50 on the note.
Ellen Power was made a party defendant as she was asserting some kind of interest in the lot.
The defendants answered by general demurrer, by general denial, and by specially excepting to plaintiff's petition, first, upon the grounds that it appeared on the face thereof that more than four years had elapsed from the time the note had become due and the time the suit was filed, and therefore the plaintiff's cause of action was barred by the four-year statute of limitation; and, second, that it appears from said petition that more than four years had elapsed from April 12, 1922, the last maturity date as fixed by the extension agreement and the filing of the plaintiff's suit.
Frank Power denied writing the letter of date July 16, 1922, and by verified plea alleged that the same was not his act or deed, and that he was not bound thereby.
Defendants further alleged that the lot upon which the plaintiff was asserting a lien constituted the homestead of their family at all times since they purchased the same in 1918; that defendant Ellen Power was never at any time a contracting party with the owner of the note and lien. They then alleged that, since the last agreement extended the date of maturity of the note to April 12, 1922, the note was barred by the statute of limitation of four years on the 12th day of April, 1926, and that defendant Ellen Power acquired a superior interest in said homestead property to any interest the plaintiff might claim thereto. They alleged that the letter of date July 16, 1926, did not create or preserve a lien on said property as against the defendant Ellen Power, and was ineffectual for the purpose of affecting subsequent acquired rights of plaintiff, since the note was barred by the statute of limitation of four years on the 12th day of April, 1926.
The cause was tried before the court without a jury. All demurrers and exceptions were overruled, and judgment was rendered for the plaintiff for the sum found to be due on the note, and for $296.61 as attorney's fees, and for a foreclosure of her vendor's lien on the property. From such judgment the defendants have appealed.
That the note was executed in part payment for the lot involved in the suit, and that the vendor's lien was reserved to secure the payment of the note; that plaintiff was the legal owner and holder of the same, together with said lien; that the maturity date of the note was, in manner and form as required by law, extended for a valuable consideration to the 12th day of April, 1922 — is undisputed. It is also undisputed:
That appellant Frank Power, after the aforesaid extension was made, and after appellee had demanded of him payment of the note in November, 1925, to avoid foreclosure of the vendor's lien, told plaintiff that he could not pay all of the note at once, but that he would pay $50 thereon each month until the note was fully paid. That plaintiff, relying upon such promise, forebore the enforcement of full payment of the note at one time. That, in pursuance of such promise, appellant Frank Power paid to plaintiff, to be credited upon the note, $50 on each of the following dates:
November 3, 1925, by cash.................. $50 00
December 5, 1925, by cash.................. 50 00
March 2, 1926, by cash..................... 50 00
March 30, 1926, by cash (Ed Argo for mules) 50 00
June 3, 1926, by cash...................... 50 00
That on the 10th day of July, 1926, plaintiff wrote appellant Frank Power the following letter:
That said Power received said letter, and, after reading same, handed it to his wife, Ellen Power, and requested her to answer it. That, in compliance with such request, Ellen Power wrote the letter, a copy of which has already been set out above, which contains the following sentence:
That, after such letter was written, to wit, on the 3d day of August, 1926, Frank Power paid to appellee as a credit on the note $50.
It is also undisputed that, from the time appellants purchased the lot involved in the suit, it constituted their homestead, subject only to the vendor's lien asserted by appellee.
The plaintiff's suit was brought on the 9th day of February, 1927, less than one year after the letter of date July 16, 1926, was written to and received by appellee.
Appellants contend that the court erred in not sustaining their pleas of limitation and...
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