Traders' Nat. Bank v. Price

• Decision Date: 02 March 1921
• Docket Number: (No. 160-3148.)
• Citation: 228 S.W. 160
• Parties: TRADERS' NAT. BANK v. PRICE et al.
• Court: Texas Supreme Court

228 S.W. 160

TRADERS' NAT. BANK v. PRICE et al.

(No. 160-3148.)

Commission of Appeals of Texas, Section A.

March 2, 1921.

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

Suit by the Traders' National Bank against Mrs. Anna H. Price, T. P. Day and wife, and others. A judgment for plaintiff, from which the named defendants alone appealed, was reversed as to the appealing defendants by the Court of Civil Appeals (195 S. W. 934), and plaintiff brings error. Judgment of the Court of Civil Appeals reversed and that of the district court affirmed.

R. L. Carlock, of Fort Worth, and Ewing Thomason, of El Paso, for plaintiff in error.

W. R. Sawyers, of Fort Worth, for defendant in error Weadington.

E. H. Ratcliff, Lee, Lomax & Smith, and Wm. J. Berne, all of Fort Worth, for other defendants in error.

SONFIELD, P. J.

Traders' National Bank, plaintiff, sued Mrs. Anna H. Price, T. P. Day and wife, R. P. Waltz, J. F. Weadington, B. J. Houston and wife, and others not necessary to name, defendants, to recover upon a note executed by R. P. Waltz to B. J. Houston, secured by a vendor's lien on 57 acres of land, and to foreclose the vendor's lien on the land. Houston was sued as indorser and guarantor of the note under a transfer of same to the bank and extension agreements, and Weadington as guarantor of the note at a date subsequent to its execution. The other defendants were sued as claiming an interest in the land. All of the defendants disclaimed interest in the land except Mrs. A. H. Price and Day and wife, who filed a cross-action seeking its recovery. The trial was to a jury, resulting in a judgment in favor of plaintiff, from which judgment Mrs. Anna H. Price and Day and wife alone appealed.

Weadington did not appeal, and filed no assignments of error, but in the Court of Civil Appeals filed a brief suggesting fundamental error in the judgment as to him. The Court of Civil Appeals declined to consider his brief, and affirmed the judgment of the district court as to all parties except Mrs. Anna H. Price and Day and wife. As to these parties, the judgment of the district court was reversed, and judgment rendered that plaintiff take nothing as to them, and they recover on their cross-action the title to and possession of the 57 acres, free from all claims of plaintiff and the other defendants. 195 S. W. 934.

The following material facts are taken from the findings of the Court of Civil Appeals:

In 1907 B. J. Houston, the then owner of the land in controversy, conveyed the same to defendant Waltz. As part consideration, Waltz executed and delivered to Houston his note for the principal sum of $6,000, dated June 20, 1907, due 12 months after date, payable to the order of Houston. The deed expressly retained a vendor's lien to secure the note, and was duly recorded. Before maturity of the note, Houston, for a valuable consideration paid by plaintiff, sold and indorsed to it the note, and executed and acknowledged a transfer and assignment of the vendor's lien and of all of his right, title, and interest in and to the land. This instrument was not recorded. Waltz did not in fact purchase the land from Houston, and did not pay him the cash consideration recited in the deed, or any part of it; it appearing that the transaction was had in order to enable Houston to borrow money on the note. Plaintiff acquired the note in due course of trade in good faith before maturity, and without knowledge that the original transaction between Houston and Waltz, through which the note was given, was not a genuine transaction, and believing that the transaction was what it purported to be on the face of the instruments. After Houston transferred the note and lien to the bank, and before the maturity of the note, Waltz reconveyed the land to Houston, the latter assuming payment of the note. This deed of reconveyance was never recorded.

On February 26, 1914, Day and wife filed suit in the district court of Tarrant county to recover against Houston the sum of $3,000, which they had prior thereto delivered to him to be loaned for them upon proper security, and on the same day sued out and caused to be levied a writ of attachment on the 57 acres as the property of Houston. On March 10, 1914, Mrs. Price brought suit in the same court against Houston to recover the sum of $8,000, delivered to Houston to be loaned for her upon proper security, and on the same date sued out and caused to be levied a writ of attachment on the 57 acres as the property of Houston. The money so delivered to Houston by Mrs. Price and the Days was embezzled by him. Prior to the filing of these suits, Houston fled the country, and at the date of the trial of this case could not be found. Mrs. Price and the Days recovered judgments in their respective suits for the amounts sued for, with foreclosure of the attachment liens on the land in controversy. Plaintiff bank was not a party to these suits. Thereafter the land was sold under proper order of sale in the case of Price v. Houston, Mrs. Price purchasing the same, paying the costs, and crediting the balance of the purchase price on her judgment. Subsequently, under proper order of sale, in the case of Day v. Houston, the land was sold to the Days for $25, which amount was credited on the judgment, they paying in addition the costs.

From June 20, 1908, the date of the maturity of the note executed by Houston, the same was from time to time extended by agreement between Houston and the plaintiff bank; such extensions being indorsed on the back of the note and not recorded. At the time of the levy of the writs of attachment, the note was more than four years past due from its original due date.

The Days and Mrs. Price at the time of the levies of the writs of attachment had no actual notice or knowledge of the lien of plaintiff bank, and no constructive notice thereof, other than that given by the record of the deed from Houston to Waltz and the stated retention therein of the lien to secure the payment of the note in question. It is further established that at the date of the levy of the writs of attachment the Days and Mrs. Price had no knowledge of the reconveyance of the land by Waltz to Houston, of the assumption of the note by Houston, or of the various extensions of the note.

The Court of Civil Appeals correctly held that Weadington, not having perfected an appeal from the judgment rendered against him, must be held bound by such judgment, and could not claim a reversal in his behalf on the appeal by the Days and Mrs. Price. Sullivan v. Doyle, 108 Tex. 368, 194 S. W. 136.

In the view of the parties, the determinative question presented may be thus stated: The deed from Houston to Waltz, expressly retaining a vendor's lien, being of record, but the assignment of the note and lien by Houston to plaintiff bank not being recorded, and defendants, creditors of Houston, having levied writs of attachment upon the land without actual notice thereof, was the assignment void as to defendants?

The assignment of the note and lien by Houston to plaintiff bank was an instrument authorized to be recorded. Had the record owner of the note and lien...