Scott v. Watson

• Decision Date: 16 May 1914
• Docket Number: (No. 7126.)
• Citation: 167 S.W. 268
• Parties: SCOTT et al. v. WATSON et al.
• Court: Texas Court of Appeals

167 S.W. 268

SCOTT et al. v. WATSON et al.

(No. 7126.)

Court of Civil Appeals of Texas. Dallas.

May 16, 1914.

Rehearing Denied June 6, 1914.

Appeal from District Court, Henderson County; John S. Prince, Judge.

Action by H. C. Scott and another against Geo. H. Watson and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

W. R. Bishop, of Athens, for appellants. Richardson, Watkins & Richardson, of Athens, for appellees.

TALBOT, J.

This suit was brought by the appellants, H. C. Scott and J. R. Reierson, against the appellees, George H. Watson, O. B. Watson and B. M. Coker, on the 8th day of August, 1913, to recover on a promissory note for the sum of $300, and interest, payable on or before October 1, 1907, and to foreclose a vendor's lien on the tract of land described in plaintiffs' petition, or, in the alternative, to recover the title and possession of said land. The petition alleges, in substance, that on and prior to the 25th day of November, 1905, Reierson, Wood & Scott was a mercantile firm composed of the said J. R. Reierson, J. C. Wood, and H. C. Scott; that on said 25th day of November, 1905, the said Reierson, Wood & Scott, being the joint owners thereof, sold and conveyed by deed the land in controversy to the defendants Geo. H. Watson and O. B. Watson; that the note sued on was given in part payment for said land; and that a vendor's lien was retained in both said note and said deed to secure the payment of said note, which defendants have failed and refused to pay.

The petition further alleges that plaintiffs, on January 1, 1913, were lawfully seised and possessed of said land, holding the same in fee simple; that on said date the defendants entered upon the same and ejected plaintiffs therefrom, and unlawfully withholds from them the possession of said land to their damage in the sum of $1,500. The prayer was for judgment for their debt and foreclosure of the vendor's lien, or that they have judgment for the title and possession of said land, for writ of possession, and general relief. The defendants pleaded a general demurrer, not guilty, and specially the statute of limitation, and that plaintiffs did not own the note sued on, or any part of it; that said note was sold and transferred by plaintiffs, in so far as they held any interest in the same, to Mrs. Ella Wood, and its payment secured to her by the indorsement of plaintiffs, and that, when said note became due, it was paid off and discharged in full and canceled, and that, after its transfer to Mrs. Wood, plaintiffs have never had nor held any right, title, or interest therein, nor in the land sued for; that the said J. C. Wood, husband of Mrs. Ella Wood, died in January, 1906, leaving a will by which his wife, Mrs. Ella Wood, was made the independent executrix and sole legatee of his estate, and that said will had been duly probated; that the copartnership firm of Reierson, Wood & Scott, at the date of the said J. C. Wood's death, owned the note sued on and four other notes of like character, given by the defendants George H. Watson and O. B. Watson to said firm for the purchase money of the land in controversy; that in January, 1906, after the death of the said J. C. Wood, plaintiffs and the said Mrs. Ella Wood entered into and made a partition of a portion of the said copartnership property, by which the plaintiffs became the sole owner of 160 acres of land in Henderson county, Tex., known as the S. A. Jordan pre-emption, and belonging to said copartnership property, and the said Mrs. Ella Wood became the sole owner of the said five vendor's lien notes, with the vendor's lien on the land in controversy; that such partition was fully executed and acted upon by said parties, and, at the request of the plaintiffs, the said Ella Wood joined with plaintiffs in the execution and delivery of a deed conveying said 160 acres of land to one Page and wife, for the benefit of said plaintiffs, the consideration for such conveyance being $2,400, which plaintiffs received and appropriated to their own use, and that the said Mrs. Ella Wood in turn became the owner of said five vendor's lien notes, including the one involved in this suit, and all of the interest that plaintiffs theretofore had in and to the land for which said notes were given; that all of the title theretofore held by said plaintiffs in and to said notes and land was by said partition divested out of plaintiffs and invested in the said Mrs. Ella Wood; and that at no time since said date have the plaintiffs, or either of them, ever had any right, title, or interest in or to said notes, lien, or land.

The defendant Coker, further answering, says that he bought the land described in plaintiffs' petition from Mrs. Ella Wood October 22, 1910, and received a deed therefor, which was recorded in Henderson county, Tex.; that he paid a valuable consideration for said land without any knowledge of any lien against the same; that he bought the same in good faith, took possession, and made valuable improvements thereon, and is now the owner and holder of said land in fee simple. By supplemental petition plaintiffs specifically denied the allegations of defendants' answer, and averred that they indorsed the note sued on to Mrs. Wood, but that, after the same became due, they paid it to Mrs. Wood, and that she transferred and delivered said note to them, and since that time, January 30, 1908, said note has been the property of plaintiffs. They alleged that they were the owners of a two-thirds undivided interest in the land in controversy and prayed a recovery therefor. The case went to trial October 1, 1913, and, upon the conclusion of the evidence, the court instructed the jury to return a verdict in favor of defendants, which was done, and judgment entered in accordance therewith, and plaintiffs appealed.

The first assignment of error is, in effect, that the court erred in instructing a verdict in favor of the defendants, because there was evidence showing that the note sued on had never been paid; that plaintiffs were grantors in the deed conveying the land in question, and received said note as a part of the consideration for such conveyance; that both said note and deed retained a vendor's lien on said land to secure the payment of said note; that plaintiffs had never released said lien or parted with the "higher legal title to said land"; and that defendant Coker bought said land with knowledge, both actual and constructive, of the existence of said note and the lien on said land. We differ from this view of the evidence in important particulars, and believe the assignment should be overruled. The trial court instructed the jury that the facts...