Vieno v. Gibson

• Decision Date: 18 October 1892
• Citation: 20 S.W. 717
• Parties: VIENO v. GIBSON <I>et al.</I>
• Court: Texas Court of Appeals

20 S.W. 717

VIENO v. GIBSON et al.

Court of Civil Appeals of Texas.

October 18, 1892.

Error from district court, Cherokee county.

Action by Ed. Vieno against James Gibson, W. G. McKee, and W. H. Harris. Judgment for defendants McKee and Harris, and plaintiff brings error. Affirmed.

C. G. White, for plaintiff in error. McClure & Gibson, for defendants in error.

GARRETT, C. J.

This suit was instituted April 28, 1890, by Ed. Vieno, against James Gibson and W. G. McKee, in the district court of Cherokee county, to recover of Gibson on a promissory note, and to foreclose a vendor's lien as to said Gibson and the defendant McKee, who claimed an interest in the land upon which the foreclosure was sought. W. H. Harris was afterwards also made a party defendant, as claiming some interest in the land. Herman Rose, who joined Gibson in the purchase and the execution of the notes, was not made a party to the suit. It was alleged that he was insolvent, and had left the state. There was no defense by the defendant Gibson, and plaintiff had judgment against him by default. McKee and Harris pleaded purchase of the land at a sale made in accordance with a prior foreclosure on the same land by the plaintiff, Vieno, on another note, which had matured first, and was also held by plaintiff, and that they took the land discharged of the lien of the second note. Plaintiff demurred to the answer, but his demurrer does not seem to have been relied on. He also replied that the defendants McKee and Harris bought with full notice of the second note; that Gibson and Rose were both insolvent; that the land was worth $2,000, and its rental value was $300 per annum; that it sold for a wholly inadequate price, — and prayed in the alternative for a resale of the land if the court should be of the opinion that he could not have a foreclosure as prayed for in his original petition, and that the land be sold again to satisfy the claims both of plaintiff and the defendants McKee and Harris, according to their equitable rights in the premises, and for general and equitable relief. Judgment was rendered in favor of defendants McKee and Harris. Our conclusion of the facts of the case is as follows:

1. On May 15, 1886, one R. D. Yoakum sold the land upon which the foreclosure is sought to be had to defendant Gibson and Herman Rose, who executed therefor their two notes of the same date, both payable to R. D. Yoakum or bearer, with interest, and for the payment of which a vendor's lien was retained in the deed. The first note was for the sum of $1,000, and was due on January 1, 1887; and the second, the one now sued on, is for $1,085.50, due December 1, 1889. The first note was further secured by a mortgage on personal property. Both of these notes were transferred by Yoakum to the plaintiff, Ed. Vieno.

2. When the first note fell due, plaintiff brought suit thereon in the district court of Cherokee county against both Gibson and Rose, to recover the amount thereof, and to foreclose the mortgage on the personal property and the vendor's lien on the land. Plaintiff alleged that he was the holder of both notes, but did not ask for any action as to the second note, which was not then due. On December 19, 1887, plaintiff recovered judgment against Gibson and Rose for $765.17, which was the balance due on the said first note, and foreclosing his mortgage lien on the personal property and the vendor's lien on the land. The judgment made no reference to the second note, which is now sued on.

3. An order of sale was issued on the judgment, directing the sale of the personal property and land. The personal property was sold first by the sheriff, and brought the sum of $276.76. The land was then sold under the order of sale on the first Tuesday in May, 1888, by the sheriff, and was bid off at the sale by the defendants McKee and Harris for $255, which still left a balance due on the judgment. Defendants paid their bid, and received a deed from the sheriff in usual form.

4. At the sale, plaintiff, Ed. Vieno, was represented by his attorney, who, before the sale, informed the defendant McKee that the land would be sold to satisfy the balance due on the judgment for the first note, and that plaintiff still owned and held the second note, which he showed to McKee, and stated that plaintiff would expect the purchaser to protect the second note. McKee said nothing. He further stated that plaintiff should have been present at the sale, and, if things did not turn out to suit him, it was his own fault; that he did not know what to do, but if the land brought over $250 he would let it go. The same announcement was made to those present at the sale when the sheriff began to auction off the land, and both McKee and Harris were present and heard the announcement, and both knew the date and amount of the note now sued on, and of the time of the maturity thereof.

5. At the sale, Edwards, attorney for the plaintiff, Vieno, bid for the land $250. McKee then bid $255, and Edwards again bid $260, whereupon McKee bid $265, stating that, "if you raise that bid, you can have it." Edwards, probably not understanding McKee to have made a bid, said, "I will withdraw my bid of $260, if you will take it at your last bid of $255." The...