Quick v. Anderson

• Decision Date: 02 June 1921
• Docket Number: (No. 6592.)
• Citation: 232 S.W. 536
• Parties: QUICK v. ANDERSON et al.
• Court: Texas Court of Appeals

232 S.W. 536

QUICK v. ANDERSON et al.

(No. 6592.)

Court of Civil Appeals of Texas. San Antonio.

June 2, 1921.

Rehearing Denied June 22, 1921.

Appeal from District Court, Dimmit County; J. F. Mullally, Judge.

Action by Leon W. Quick against J. S. Anderson and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Vandervoort & Johnson, of Carrizo Springs, for appellant.

N. A. Rector, of Austin, and A. L. Green, of Fort Worth, for appellees.

FLY, C. J.

This is an action instituted by appellant against the nine appellees, consisting of J. S. Anderson and his wife Ardie J. Anderson, Lee Howell, the Empire Gas & Fuel Company, the Equitable Trust Company of New York, J. R. Harris, trustee, A. J. Vestal, C. E. Oxford, and the Bank of Snyder, the allegations in substance being: That on or about December 5, 1910, J. S. Anderson and L. W. Webb executed to Harry Hust, S. P. Brundage, H. C. King, and Eli Howell two promissory notes, one for $1,306.66 and the other for $1,306.67, the former due on September 5, 1911, the latter on June 5, 1912, both reciting that they were given for part of the purchase money of certain lots or parcels of land in Bermuda Colony and in the town of Brundage in Dimmit county, which land had, on even date with the notes been conveyed by the payees to the payers; a vendor's lien being reserved therein to secure payment of the notes. That on May 27, 1911, the payees in the notes and makers of the deed assigned the notes and conveyed their superior title to the Bankers' Trust Company of St. Louis, Mo., and on September 23, 1920, said last-named company duly transferred the second note herein described to appellant for a valuable consideration, and that the same is due and unpaid. It was further alleged that on January 29, 1912, J. R. Harris, trustee, acting for defendant C. E. Oxford, recovered against the said Hust and Brundage, a judgment for $2,117.25, that on January 1, 1911, the Bank of Snyder recovered judgment against Eli Howell for $1,273; that each of these defendants is asserting claim to the lands, and appellant prayed that he have judgment for the real estate and premises described, and that the title be divested out of all defendants, and be invested in appellant. The court sustained a general demurrer, and, appellant refusing to amend, the cause was dismissed.

If the suit can be classified at all, it was intended as an action in trespass to try title, because its object was to recover certain lands.

If it be held that the allegations show that appellant had acquired the superior title to the land by purchase of one of the notes, his cause of action was clearly forfeited by the statute when he instituted his suit, as appears from the allegations of his petition. He shows that the notes were executed on December 5, 1910, and one became due on September 5, 1911, and the other on June 5, 1912, and that he obtained the note due on June 5, 1912, on September 23, 1920, more than eight years after it became due. Under the acts of the...