Stergios v. Babcock, 17996
| Decision Date | 22 June 1978 |
| Docket Number | No. 17996,17996 |
| Citation | 568 S.W.2d 707 |
| Parties | Angelo STERGIOS et al., Appellants, v. Phyllis BABCOCK, Appellee. |
| Court | Texas Court of Appeals |
Angelo Stergios, Basil Stergios, Andrew Kastanos and Thero D. Pantaze, plaintiffs below, have appealed a judgment rendered on their suit for damages against Phyllis Babcock. Appellants' suit alleged breach of provisions in a vendor's lien promissory note. Trial was to a jury, which awarded appellants $24,860.80. On its own motion, the trial court rendered judgment for appellants for only $12,738.40 (representing 1976 interest payment and back taxes paid into registry of the court) and allowed appellee, Phyllis Babcock, to retain an interest payment of $12,122.40 (late 1975 interest payment) made by appellants.
Appellee did not file a brief.
We reverse and render in part and affirm in part.
Appellants contracted to buy a 53.49 acre tract of land from appellee and her (since divorced but now deceased) husband. She acquired the note in the divorce settlement. Total consideration for the land was $209,179.95 broken down as follows: $1,500.00 down, $34,502.74 at closing, vendor's lien promissory note (secured by deed of trust) $173,177.21. The note provided for six annual, interest only, payments of $12,122.40.
The note had a clause which recited:
"In the event of any default hereunder or under the Deed of Trust securing this Note, the Holder of said Note shall not be entitled to a personal judgment against the Maker hereof or his successors or assigns, it being expressly understood that there exists no personal liability hereunder, and that the sole and only remedies of the Holder of said Note in the event of default shall be the property, subject to such Vendor's and Deed of Trust Lien for satisfaction of this Note." (Emphasis added.)
The deed of trust and the warranty deed had similar clauses.
Herewith is a chronology of pertinent happenings:
May 15, 1975 - Appellants defaulted on interest payment
May 16, 1975 - Appellee accelerated maturity of note
without notice given before maturity
June 6, 1975 - Appellee had "Notice of Trustee's Sale"
posted, scheduled for July 1, 1975
After receiving such notice, appellant paid
the $12,122.40 interest payment by check.
June 23, 1975 - Appellee cashed the check.
July 1, 1975 - Appellee had the property sold at trustee's
sale and bought it herself for $35,000.00.
Our concern in this appeal is whether the trial court erred in disregarding the jury verdict in not awarding the appellants the $12,122.40 representing their late $12,122.40 1975 interest check and interest therefor from July 1, 1975...
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