Stone v. Tilley

• Decision Date: 10 April 1907
• Citation: 101 S.W. 201
• Parties: STONE et al. v. TILLEY et al.
• Court: Texas Supreme Court

101 S.W. 201

STONE et al. v. TILLEY et al.

Supreme Court of Texas.

April 10, 1907.

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

Suit by F. J. Stone and others against G. W. Tilley and others. From a judgment in favor of defendants, affirmed by the Court of Civil Appeals (95 S. W. 718), plaintiffs bring error. Reversed.

G. W. Barcus, for plaintiffs in error. Sleeper & Kendall, for defendants in error.

BROWN, J.

J. E. Stone and his wife resided in Waco and were possessed of community estate, of which the land described in the plaintiffs' petition, situated in the city of Waco, was a part. A. A. Stone died, leaving F. J. Stone, Ethel Swint (née Stone), Alonzo Stone, and Pearl Stone her only children and heirs at law. After the death of his wife, J. E. Stone in the management of the community estate contracted a debt with N. J. S. Lacy of $2,500, which was a debt against the community property of himself and his deceased wife. J. E. Stone executed to Lacy a deed of trust upon the piece of land in the city of Waco to secure the said $2,500, and afterwards, in March, 1898, a suit was filed in the district court of McLennan county by the heirs of Mrs. Stone, plaintiffs in error, against J. E. Stone, for partition of the property. By agreement the property was partitioned, and the land upon which the deed of trust herein mentioned was given by J. E. Stone was set apart to the heirs, subject to the debt of the said Lacy. In the years 1898, 1899, 1900, and 1901 this piece of land was assessed in the city of Waco for taxes in the name of the plaintiffs in error, and, they having refused to pay the taxes, the city filed a suit in the district court of that county against the plaintiffs in error and J. E. Stone and N. J. S. Lacy, and recovered judgment against the plaintiffs in error for the debt, $365.41, and also foreclosing the lien for taxes upon the said land as against the said plaintiffs in error and the said J. E. Stone and N. J. S. Lacy. An order to sell the land in satisfaction of the judgment was issued, and in April, 1904, Lacy paid off the judgment in order to protect his deed of trust upon the land. Lacy subsequently sold the land under the power contained in the deed of trust for the sum of $2,000, and then sued out an execution upon the judgment in favor of the city of Waco against the said plaintiffs in error for the amount of the judgment, interest, and costs. At the suit of the plaintiffs in error the execution was enjoined, and Lacy filed a cross-bill against the plaintiffs in error for the recovery of $365.41, together with interest thereon and costs, which he had paid in discharging the said judgment in favor of the city, claiming that he had paid the said judgment in order to protect the lien that he had by virtue of his deed of trust upon the land. Upon the trial judgment was given perpetuating the injunction against the execution, and judgment was rendered in favor of Lacy against the plaintiffs in error for the amount of the judgment, interest, and costs paid by Lacy. The Court of Civil Appeals affirmed the judgment of the district court.

Lacy, who paid the judgment to the city of Waco, was not liable for the taxes due to the city, nor was he included in the judgment rendered in the suit by the city against the plaintiffs in error. Lacy had no right nor interest in the payment of the taxes due to the city,...