Smith v. Tipps

• Decision Date: 16 March 1921
• Docket Number: (No. 149-3098.)
• Citation: 229 S.W. 307
• Parties: SMITH et al. v. TIPPS.
• Court: Texas Supreme Court

229 S.W. 307

SMITH et al. v. TIPPS.

(No. 149-3098.)

Commission of Appeals of Texas, Section B.

March 16, 1921.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Suit by John M. Tipps against Clem Smith and others. Judgment for plaintiff was affirmed by the Court of Civil Appeals (191 S. W. 392), and defendants bring error. Judgment of the Court of Civil Appeals and of the district court reversed, and cause remanded.

T. J. Arnold, of Houston, for plaintiffs in error.

R. T. Brown, Jas. Y. Gray, and W. M. Futch, all of Henderson, for defendant in error.

KITTRELL, J.

On May 1, 1913, Tipps filed suit against Smith and one Johnson and one Moore, the first named as maker and the last two as guarantors of the payment of three promissory notes, each for the sum of $100 and all bearing date November 1, 1906, and due respectively November 1, 1907, 1908, and 1909, which notes were the entire purchase money of the land involved in this action. The land was bought by one Watkins for himself and one Hightower, the latter furnishing the money, the profits to be equally divided. The land was sold by Watkins and Hightower to Smith, and the notes were made payable to the vendors or bearer.

On November 7, 1908, the notes were transferred to R. K. Johnston, and on the 14th day of December, 1912, after two of the notes were barred, Johnston and one Moore transferred the notes to Tipps and guaranteed their payment. Tipps paid $350 for the notes, after he had seen Smith and had been told by him the notes were a just debt and he would pay them, and would come to town in a few days and renew those that were barred.

Tipps prayed judgment for the amount of the notes and interest and foreclosure of the vendor's lien. On June 30, 1913, Smith answered and pleaded the statute of limitation. Tipps replied by what he termed his first amended (not supplemental) petition, alleging that it was true a portion of his cause of action accrued more than four years before suit was brought, but that one note was not barred, and alleged much irrelevant matter about how the land was purchased, and how Smith promised to renew and pay the notes, and how Watkins refused to transfer his one-half of the superior title, while Hightower did convey his one-half. He also renewed his prayer for foreclosure, and further prayed that title to all the land be vested in him. On January 5, 1914, Tipps filed his second amended petition, asking that the deed to Smith from Watkins and Hightower be canceled and title to the land be declared to be in him (Tipps) in fee simple, and prayed for rents.

It seems that plaintiff recovered judgment, but on appeal the judgment was, on December 3, 1914, reversed on the ground that the pleading did not support it or authorize any judgment. 171 S. W. 816. Evidently the case came back for retrial, and on June 11, 1915, Tipps filed his third amended petition, amending, as he alleged, by specific designation his original, first amended, and his second amended petitions but no reference was made to the notes or to Moore or Johnston, but the action was substantially in the form of "trespass to try title," the amendment being so indorsed, and Tipps filed motion to require defendant to file abstract of title, which motion was complied with. Prayer was also made that Watkins be required to show what right or interest he had in the land.

On June 19, 1915, Smith answered, pleading not guilty, and pleaded limitation under color of title, and that more than twelve months had elapsed before the action in form of trespass to try title was brought under the superior title act, and pleaded three years' possession and the five years' statute. Tipps excepted to the answer on the ground of vagueness and indefiniteness, etc.

The abstract of title consisted of the deed from Hightower and Watkins to Smith and the transfer of superior title by Hightower to Tipps on January 25, 1913, and filed among the papers in the case July 7, 1913.

The court found: First, that Hightower and Watkins were "partners" in purchase of the land; second, that the notes were transferred as above set forth, and that Smith paid $10 October 8, 1908, and $80 October 22, 1910; third, that Smith, before Tipps bought, promised to renew the notes, and that he (Smith) denied filing the plea of limitation, and denied that he had employed a lawyer, and found that Tipps obtained judgment February 6, 1914, and that mandate of reversal was filed in the court on February 5, 1915, and that on June 11, 1915, Tipps filed his third amended petition, and that Smith and Watkins were cited and Watkins disclaimed; and found the transfer of the superior title from Hightower to Tipps as above set forth; fourth, as a matter of law the court found that Tipps, as holder of the three notes and the superior title from one of the partners, was entitled to sue for the land; that...