Richardson v. Hughes

• Decision Date: 27 November 1940
• Docket Number: No. 8939.,8939.
• Citation: 146 S.W.2d 255
• Parties: RICHARDSON et al. v. HUGHES.
• Court: Texas Court of Appeals

146 S.W.2d 255

RICHARDSON et al. v. HUGHES.

No. 8939.

Court of Civil Appeals of Texas. Austin.

November 27, 1940.

Rehearing Denied December 31, 1940.

Appeal from District Court, Tom Green County; O. L. Parish, Judge.

Suit by Robert Hughes, independent executor of the estate of Mrs. Emma Cornell, deceased, against Mrs. Lela Viola Millsap Richardson and others, on certain vendor's lien notes and for foreclosure of such lien. From a judgment for plaintiff, the defendants appeal.

Reversed and remanded.

Collins, Jackson & Snodgrass, of San Angelo, for appellants.

R. G. Hughes, of San Angelo, for appellee.

BAUGH, Justice.

Upon a re-examination of the record and a careful consideration of appellants' motion for a rehearing, we have concluded that the motion should be granted. To prevent unnecessarily encumbering the published reports, we are withdrawing the former opinion written herein, and substitute this in its stead.

This suit was by Robert Hughes, independent executor of the estate of Mrs. Emma Cornell, deceased, owner of and upon certain vendor's lien notes originally executed in 1914 in part payment for 96 acres of land in Irion County, payment of which was subsequently assumed by D. L. Hess; for foreclosure of such lien; and against the Richardsons as claiming an interest in said lands, alleged to be subordinate to such lien.

The Richardsons answered setting up a judgment lien arising out of a judgment in favor of Mrs. Richardson against Hess, duly abstracted and recorded in Irion County, a levy of execution upon, and sale by the sheriff thereunder, the lands as the property of Hess, the purchase thereof by Mrs. Richardson at such execution sale, and sheriff's deed to her. Further, that the vendor's lien asserted by Hughes was barred by limitation of four years.

Trial was to the court without a jury and judgment rendered for plaintiff as prayed for; hence this appeal. Upon request duly made, the trial court filed findings of fact and conclusions of law.

The controlling question presented is which lien, the judgment lien or the vendor's lien, is superior.

The original vendor's lien notes were variously assigned, and their maturity dates extended. The land also was conveyed several times wherein the grantee assumed payment of the indebtedness against it, and some of it was paid off. The only conveyance pertinent to our inquiry here was one to D. L. Hess on October 25, 1930, recorded December 23, 1930, wherein Hess assumed a merged balance of about $3,400, then due on said notes to the estate of M. A. Smith, deceased, of which Jerry Monroe was then temporary administrator. On December 17, 1931, Jerry Monroe as such temporary administrator applied to the Probate Court of Tom Green County, where administration of the Smith estate was pending, for authority to bring suit against Hess on said notes. This authority was granted, suit thereon filed in Tom Green County, and notice of lis pendens filed in Irion County on December 18, 1931. This suit, however, was without application to, or authority of, the Probate Court, compromised and settled by such temporary administrator upon payment by Hess of $500 and his execution and acknowledgment of an extension agreement dated June 3, 1932, extending the maturity dates of said notes to June 1, 1934. This compromise of such suit, and the extension agreement made by Hess, was reported by him to the Probate Court on September 19, 1932. Said notes and lien were thereafter assigned to Hughes as executor and no question is raised as to his ownership. The extension agreement was not filed for record in Irion County until October 15, 1936.

Meantime, Mrs. Lela Viola Richardson had on February 6, 1933, obtained a personal judgment against D. L. Hess for $1,800, had caused same to be abstracted, and an abstract thereof filed in Irion County on August 15, 1934, properly recorded and indexed. Alias execution was issued out of the District Court of Tom Green County on said judgment to Irion County, on January 8, 1935, said lands levied upon and sold at sheriff's sale as the property of Hess, and bought in by Mrs. Richardson by crediting the amount of her bid — $250 — on her judgment against him.

Appellants' first contention is that under the facts above stated the notes sued on were barred of record by limitation under Arts. 5520, 5522, and 6627, R.C.S., Vernon's Ann.Civ.St. Arts. 5520, 5522, 6627, when the levy was made and when Mrs. Richardson bought in said lands, and that her purchase of the lands at execution sale in February, 1935, gave her good title thereto.

The last recorded extension of said notes showed the last due to mature on January 1, 1927; but by deed, duly recorded, dated October 25, 1930, D. L. Hess, the grantee, assumed payment thereof. Under this assumption, it is now settled that said notes would not be barred by limitation until four years thereafter, that is, October 25, 1934. Bellah v. Dennis, 129 Tex. 367, 104 S.W.2d 490, and cases therein cited. Consequently, when Mrs. Richardson filed her abstract of judgment in Irion County on August 15, 1934, the notes and vendor's lien securing them were still valid obligations and her judgment lien inferior thereto. And the extension agreement of June 3, 1932, extending their maturity to June 1, 1934, continued such superiority of lien at least to June 1, 1938, if it were a valid extension and the holder of said notes not barred from asserting it by failure to have the extension agreement recorded until October 15, 1936.

Appellants contend that the purported extension agreement asserted by appellee as tolling the statute of limitation was void for lack of mutuality, and because made by the temporary administrator of the Smith estate, without permission or authority to do so granted by the Probate Court. In this regard the record shows the following: That Jerry Monroe was on July 15, 1929, appointed temporary administrator of the estate of Mrs. M. A. Smith, in lieu of the First National Bank of San Angelo theretofore appointed by the court as temporary administrator, and the temporary administration continued. Said order of...