Sutton v. Sutton

• Decision Date: 01 January 1873
• Citation: 39 Tex. 549
• Parties: CHARLES F. SUTTON v. MARY C. SUTTON ET AL.
• Court: Texas Supreme Court

39 Tex. 549

CHARLES F. SUTTON

v.MARY C. SUTTON ET AL.

Supreme Court of Texas.

1873.

1. A payment in Confederate money is not a valuable consideration, and a purchaser of land paying therefor in Confederate States money cannot be a bona fide purchaser for a valuable consideration.

2. A note given partly for land and partly for personal property cannot be a lien upon the land unless it can be shown what part of the note was given for the land.

3. Land held by one for use of himself and a joint owner, and sold by him or his legal representative for Confederate States money, is subject to partition on application of the other joint tenant.

APPEAL from Fayette. Tried below before the Hon. I. B. McFarland.

Charles Sutton in his petition alleged that he and John Sutton owned, jointly and equally, three hundred and ninety acres of land in Washington county, Texas, having bought the same from I. G. Killough on September 18, 1855, giving notes for purchase money, which notes had been paid promptly, but no deed executed for the land; that he bought and paid for, jointly with John Sutton, sixty-nine acres of John P. Bell, and traded this to I. S. Hill for one hundred and thirty acres, more or less, in Fayette county, and that he owned a half-interest in the one hundred and thirty acres. He also claimed that he and John Sutton carried on a farm on the three hundred and ninety acre tract, owning together certain personal property; that about January 1, 1860, he sold out his interest in said real and personal property to John Sutton for $5,000, taking his note therefor; that $2,470 of said note was for the real and the balance for the personal property sold, and the vendor's lien was claimed on the half-interest in the land for its price; that John Sutton died February 11, 1863, and the note had been allowed as a debt, but rejected as a lien on July 26, 1866, by Mrs. Mary C. Sutton, executrix of John Sutton, deceased.

In an amended petition plaintiff alleged that the sale of the land to John Sutton was a verbal one; that he, John Sutton, had never paid the purchase money; and plaintiff asked for a partition, and that his half-interest be set aside to him.

The defendant, Mary C. Sutton, denied that the note, or any part of it, was given for the land; alleged that her husband, John Sutton, bought the land from Charles F. Sutton and paid him for it; that she sold the 390-acre tract as the agent of her husband to her co-defendant, George Baker, for a valuable consideration, and that neither she nor Baker had notice of any lien upon the land; that she sold the land to Baker for “Confederate money,” and had the same in her possession unused or spent, and was ready to deposit the same in court for the use and benefit of plaintiff.

The defendant, George Baker, claimed to have bought the 390-acre tract from Mrs. Mary C. Sutton and her father, John Woods, some time in December, 1862-- John Sutton, her husband, then being absent in the army of the Confederate States; Baker then receiving a bond for title from Mary C. Sutton and John Woods; that he is an innocent purchaser for a valuable consideration, without notice of plaintiff's lien, and that he had ascertained from Killough, the vendor of the Suttons, that they had paid him for the land, and that Mary C. Sutton, in November, 1865, in pursuance of said bond for title, had made him a deed, etc.

The evidence shows the following state of facts:

The bond for title from Killough, and Killough's testimony proving that the 390-acre tract had been bought and paid for,...