Singletary v. Goeman

• Court: Texas Court of Appeals
• Writing for the Court: Levy
• Citation: Singletary v. Goeman, 123 S.W. 436, 58 Tex. Civ. App. 5 (Tex. App. 1909)
• Decision Date: 25 November 1909
• Parties: SINGLETARY v. GOEMAN et al.

123 S.W. 436

SINGLETARY v. GOEMAN et al.

Court of Civil Appeals of Texas.

November 25, 1909.

Rehearing Denied December 16, 1909.

Appeal from District Court, Camp County; R. W. Simpson, Judge.

Action by the First National Bank of Pittsburg against W. J. Singletary, G. H. Goeman, and others to enforce a note given by G. H. Goeman. A cross-action was begun by G. H. Goeman and others against W. J. Singletary, and judgment was given for G. H. Goeman and others, and W. J. Singletary appeals. Reversed and remanded.

M. M. Smith, for appellant. E. A. King and W. R. Heath, for appellees.

LEVY, J.

Appellant conveyed to G. H. Goeman a house and lot in Pittsburg, Tex., for the consideration of $1,300, and the deed delivered recited a cash payment of $650 and two notes, each for $325, payable one and two years after date, respectively. The First National Bank of Pittsburg, it seems, let the vendee, Goeman, have the money to make the cash payment on the land to appellant, and a note was executed by Goeman and the appellees as sureties for the amount to the bank in the first instance as payee. The bank brought the suit, claiming, among other things not material to mention, in its petition, reasonably construing same, that it had advanced the cash to enable the vendee, Goeman, to make the cash payment for and perfect the purchase of the land, and that it was agreed by appellant and the vendee that the debt should be made payable and be paid by Goeman to the bank and in preference to the appellant's other two lien notes taken by him on the land as a part of the sale. The petition prayed for judgment against the maker of and the sureties on the note to the bank, and for a foreclosure of the vendor's lien on the premises against the said parties and the appellant, and in preference and priority to appellant's debt of the two other notes. Appellees jointly, and appellant separately, answered the suit. Appellees jointly filed a cross-action against appellant, seeking affirmative relief against him on the allegations therein. It is from the judgment on this cross-action in favor of appellees against appellant, on a jury trial, that the appeal is prosecuted for revision on the errors assigned.

Appellant by proper assignments presents for error and rests the appeal on the question of the admissibility, as being within the statutes of fraud as attempting to create a lien on real estate by parol agreement, of certain evidence offered by the sureties on the note of the bank in support of their cross-action. The testimony objected to, as stated in the bills of exception, being to the effect that appellant, before and at the time of the sale of the land and execution of the notes and payment of the money part of the consideration of the sale, agreed orally that the note of the bank should be given and be payable to the bank and "should be a preference vendor's lien in favor of the plaintiff bank in case said Goeman failed to pay same at maturity on said land," and "was to be paid to the bank before the notes given to Singletary were paid." If we could look to the pleading of the bank, interpreted as we think was the intendment of the same as set out herein in the statement of the case, we would not be inclined to the ruling that the error as contended for could be predicated upon the admission of the evidence complained of. Considering the evidence objected to along with and in its proper connection with other evidence in the case, as tested by the pleading of the bank, it might properly be said, we think: That the evidence could be held to have had for its purpose to describe the land transaction about which it relates at the time of purchase and sale, and to establish as a fact in the case that the note was in point of fact given at the time of purchase and sale of the land as a part of the purchase money of the land; that by agreement at the time of the vendor and vendee and the bank that the debt evidenced by the note in question should be payable to the bank instead of the vendor, the bank having at the time advanced the money to perfect the sale; and that the note should be paid in full by the maker in priority and preference to the portion of the debt held by the appellant evidenced by his two remaining notes. Such a state of facts, it might be said, in the proper case, could be held to show a note given in deed to the vendor of the land for the purchase money of the same and by him assigned to the bank, or the bank as a substitute payee for him. See Pinchain v. Collard, 13 Tex. 334. If in fact the purchase money had not been paid by the vendee, the recital in the deed of a cash payment would not, as against the vendor and the parties herein, be conclusive. Under such transaction about the land, the law, by reason of the facts, would give rise to or create the lien, as a vendor's lien, on the land, and the assignment of the debt evidenced by the note carries with it, as a matter of law, the vendor's lien, as a consequence and as an appurtenant to the debt. Duty v. Graham, 12 Tex. 434, 62 Am. Dec. 534; Moore v. Raymond, 15 Tex. 555; Perkins v. Sterne, 23 Tex. 561, 76 Am. Dec. 72; Wynn v. Flannegan, 25 Tex. 778; Irvin v. Garner, 50 Tex. 48. It is a well-settled rule that an assignment of a note or debt can rest in parol, and need not be in writing to be enforceable. Rollison v. Hope, 18 Tex. 446; White v. Downs, 40 Tex. 226; Clark v. Gillespie, 70 Tex. 513, 8 S. W. 121. There seem...