Price v. Logue

• Citation: 164 S.W. 1048
• Parties: PRICE et al. v. LOGUE.
• Decision Date: 07 March 1914
• Court: Court of Appeals of Texas

164 S.W. 1048

PRICE et al. v. LOGUE.

Court of Civil Appeals of Texas. Amarillo.

March 7, 1914.

Appeal from District Court, Armstrong County; Jas. N. Browning, Judge.

Suit by W. A. Price and others against Roscoe Logue. From a judgment for defendant, complainants appeal. Affirmed.

Knight & Slaton, of Hereford, Synnott & Underwood, of Amarillo, and J. S. Stallings, of Claude, for appellants. R. R. Hazlewood, of Amarillo, and W. A. Wilson, of Claude, for appellee.

HUFF, C. J.

The appellant Price brought suit to enjoin appellee, Roscoe Logue, and J. D. Woodburn, on a certain judgment rendered in the district court of Armstrong county, in favor of Roscoe Logue, against appellants Price and Woodburn, and in favor of Woodburn over against Price. The trial court, by judgment, refused relief prayed for, and in this case filed findings of fact and conclusions of law. The appellants Price and Woodburn appeal therefrom. The facts will disclose the issues.

On the 6th day of January, 1909, J. D. Woodburn, by general warranty deed, conveyed to W. A. Price a certain block of land in the town of Hereford, and as a consideration therefor W. A. Price executed his note payable to the order of J. D. Woodburn, in the sum of $600, due two years after date, with 8 per cent. interest from date, and the usual 10 per cent. attorneys' fees. A vendor's lien was retained in the note and deed to secure the payment of the note. W. A. Price thereafter by deed conveyed the land to Mrs. Minnie Witthauer, and at the request of her husband, for the consideration of $750, $50 of which was the amount due her husband, Ed Witthauer, for commission in the sale of land, and $100 cash paid by him, and also a cash payment of $100 credited on the note, and the assumption of the balance due on the note. The deed was executed to Mrs. Witthauer, at the request of her husband. She at that time knew nothing of the transaction. Ed Witthauer also assumed the payment of the balance due on the note. The note was transferred thereafter to Roscoe Logue by J. D. Woodburn, the payee in the note, by indorsement. After maturity, suit was brought on the note in the district court of Armstrong county, against Price, Woodburn, and Ed Witthauer, to recover the sum due thereon and to foreclose the vendor's lien on the land. Ed Witthauer was served by nonresident notice; he at that time, and since, residing in the state of Kansas. Personal service was had on Price and Woodburn in this state. Judgment was taken for the sum of $611.55, with foreclosure of the vendor's lien. Woodburn answered in that case by attorney. Price and Witthauer made default. Personal judgment was rendered against Price and Woodburn, jointly and severally, for the debt with a foreclosure of the lien and also a foreclosure of the lien as against Ed Witthauer by default. Woodburn was given judgment over against Price for any amount which he might be compelled to pay on the judgment; the court finding in that judgment that Woodburn was liable on the note as indorser. That judgment was rendered April 4, 1911. Execution and order of sale were duly issued and levied on the land in question; but, for some reason not fully disclosed by the record, the sale was not made.

June 2, 1912, the Witthauers, husband and wife, by deed made to J. D. Woodburn, for the recited consideration of $600 and purporting to convey the land, sent the deed to the First National Bank of Claude, together with a letter instructing the bank to deliver the deed to J. D. Woodburn, "upon the surrender of a note given by W. A. Price to J. D. Woodburn, in the sum of $600.00, and interest; also ask that you get judgment against Ed Witthauer canceled on the records of Deaf Smith county, Texas. The above note was assumed by Mrs. Witthauer." The letter was signed by Ed Witthauer. It is admitted that James Logue is the father of Roscoe Logue, and had authority to act for his son, and in fact he was the beneficiary in the suit of foreclosure and controlled the same as such. The facts show, some time after the Witthauer deed was received by the bank, that J. D. Woodburn offered James Logue $250 in money if he would accept a deed to the premises in question and release him (Woodburn) from further liability. This proposition Logue refused to accept. Neither James nor Roscoe Logue were in any way connected with or instrumental in getting the Witthauers make the deed to J. D. Woodburn and to send it to the bank and had nothing to do with taking it from the bank and having it placed of record in Deaf Smith county, unless the act of attorney W. A. Wilson, who represented Logue in the...