W. C. Belcher Land Mortgage Co. v. Clark

• Decision Date: 14 January 1922
• Docket Number: (No. 9529.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 238 S.W. 685
• Parties: W. C. BELCHER LAND MORTGAGE CO. v. CLARK et al.
• Court: Texas Court of Appeals

Page 685

238 S.W. 685

W. C. BELCHER LAND MORTGAGE CO. v. CLARK et al.

(No. 9529.)^*

Court of Civil Appeals of Texas. Fort Worth.

January 14, 1922.

Rehearing Denied February 18, 1922.

Appeal from District Court, Parker County; F. O. McKinsey, Judge.

Action by W. P. Clark and others against the W. C. Belcher Land Mortgage Company. Judgment for the plaintiffs after trial on agreed statement of facts, and defendant appeals. Affirmed.

Thompson, Barwise, Wharton & Hiner, and Wm. J. Berne, all of Fort Worth, for appellant.

Hood & Shadle, of Weatherford, for appellees.

CONNER, C. J.

This case was submitted to the trial court upon an agreed statement of facts under our statutes. We quote such parts of the agreed statement as we think necessary to an understanding of our conclusion. It was agreed that Mrs. F. C. Clark owned "in her own right" two surveys of land situated in Parker county, Tex., aggregating 189 acres, that Mrs. F. C. Clark and her husband, J. M. Clark, owned as community property another survey of 160 acres in Parker county, and that "good title thereto is shown by the records in the parties above named at the time they acquired the same."

On the 1st day of March, 1907, J. M. Clark and wife, F. C. Clark, executed and delivered to H. W. Byers and wife, Lillie F. Byers, a deed to the land above described, for a consideration of $12,000, of which $4,165.05 was paid in cash, with three vendor's lien notes for $2,000 each, of even date with the deed, bearing 10 per cent. interest from their date and made payable on the 1st of March, 1909, 1911 and 1913, respectively. To secure the payment of said notes the vendor's lien was expressly reserved in the deed.

Mrs. F. C. Clark died in Parker county, Tex., July 20, 1907. Her will bore date of May 28, 1906, and was signed "Courtney Clark," the name by which Mrs. F. C. Clark was generally and commonly known. The will was duly probated and "admitted for record on the 4th day of September, 1907," with its attestation recorded in Probate Book 10, page 1, Parker County, Tex. Her husband, J. M. Clark, was appointed independent executor with direction that no other action be taken in the county court in the administration of her estate other than to record the will and return an inventory and appraisement of her estate and list of claims. It contained, among others, the following paragraphs:

"Second. I give and bequeath to my husband, J. M. Clark, the use, income, rents and benefits of all the property, real, personal and mixed, I may die seized and possessed of, to have and to hold the same for and during his natural life, to be used by him as to him may seem best in the rearing and education of our children.

Third. I give and bequeath to my children, William Pierce Clark, Jesse Lee Clark, Robert Roy Clark, Chandler Clark, Bryon Clark and Ollie May Clark, the reversion and remainder of all the property, real, personal and mixed, I may die seized and possessed of, from and after the decease of my husband, J. M. Clark, to have and to hold the same to the said William Pierce Clark, Jesse Lee Clark, Robert Roy Clark, Chandler Clark, Bryon Clark and Ollie May Clark, to their use and behoof forever, to be equally divided between them, share and share alike, and it is hereby specially desired and I hereby give all the property I may die seized of to vest in fee simple to my said children as above set out, share and share alike, at the death of my husband, J. M. Clark."

J. M. Clark, as executor, and others, as appraisers, returned and filed in the probate court of Parker county, on September 13, 1907, an inventory and list of claims. The inventory specified the three vendor's lien notes executed by Byers and wife; it being declared in connection therewith that an interest therein of $1,200 was the separate property of the deceased. The inventory and list of claims was recorded in the probate minutes of Parker county on September 16, 1907, and was in all things properly approved by the probate court of Parker county.

It further appears that on the 1st day of January, 1908, H. W. Byers and wife, Lillie Byers, reconveyed to J. M. Clark the lands conveyed to them by J. M. Clark and his wife, Mrs. F. C. Clark, on the 1st day of March, 1907, for a recited consideration of $12,334.95—

"paid and secured to be paid by J. M. Clark as follows: The surrender and cancellation of three vendor's lien notes for $2,000 each signed by H. W. Byers and payable to said J. M. Clark and described in a deed from J. M. Clark and wife to H. W. Byers, dated March 1, 1907, and recorded in Volume 68, on page 368, of the Deed Records of Parker County, Tex. * * * And for the further consideration of two certain notes, or bonds, executed by said J. M. Clark for the sum of $2,500 and $2,000, respectively, in favor of the W. C. Belcher Land Mortgage Company, * * * which are fully described in a deed of trust of even date herewith made by said Clark in favor of said mortgage company."

The deed was in the form of a general warranty deed, but the vendor's lien was retained against the property conveyed "until the above-described notes and all interest thereon are fully paid according to their face and tenor, effect and reading, when this deed shall become absolute."

On the same day, to wit, January 1, 1908, J. M. Clark executed and delivered to the W. C. Belcher Land Mortgage Company his obligation for the sum of $2,500 and $2,000, respectively, and secured the same by a trust deed in a familiar form. The trust deed, among other things, recited that it was—

"executed, delivered, and accepted in aid of a just and subsisting vendor's lien upon the hereinbefore conveyed real estate and premises, which said vendor's lien is retained in a certain deed of conveyance of date the 1st day of January, 1908, executed by H. W. Byers and wife, conveying said described real estate and premises to J. M. Clark. * * * And said bonds and notes (executed by J. M. Clark to the mortgage company) hereby further secured are executed, delivered, and accepted in renewal and extension of the original debt for the unpaid portion of the purchase money of the said real estate and premises and for interest accrued and to accrue thereon, and the holder or holders of said bonds and notes, or of either or any of them, secures, retains, and is subrogated to all the rights, remedies, and liens of the vendor of the said real estate and premises, his heirs and assigns, expressed or implied in the said deed, and the said vendor's lien upon the said real estate and premises and every part thereof is hereby expressly retained and perpetuated to secure the full payment of said bonds and notes, with interest and attorney's fees as therein expressed."

The deed of trust authorized a sale of the premises in case of default on the part of Clark on the payment of his notes.

Thereafter, on November 3, 1908, J. M. Clark, by warranty deed, conveyed the lands in controversy to J. W. Clark "in consideration of $2,000 paid by J. M. Clark as follows: $2,000 cash in hand to me paid, the receipt of which is hereby acknowledged; also the assumption by grantee of two notes for the sum of $2,500 and $2,000, respectively, executed by J. M. Clark on January 1, 1908, and payable to the W. C. Belcher Land Mortgage Company at Fort Worth, Tex., five and eight years after date, and also all interest accruing or to accrue on said notes, all fully described in a deed of trust executed by J. M. Clark" to secure the mortgage company. While the deed is in the form of a warranty deed, the grant is only to "all of the grantee's interest in and to" the lands in question. Later, to wit, on the 30th day of March, 1920, J. M. Clark died intestate in Parker county.

At the maturity of the obligations described in the deed of trust executed by J. M. Clark to the mortgage company, and which were assumed by J. W. Clark in the deed last above mentioned, the same were renewed, and a new obligation was executed by said J. W. Clark in favor of the W. C. Belcher Land Mortgage Company in the sum of $6,000, dated December 28, 1912, due five years after date, to secure payment of which J. W. Clark executed a deed of trust in form substantially similar to that executed by J. M. Clark, reference therein being expressly made to the deed and lien mentioned in the deed from Byers and wife to J. M. Clark, and reference also being made to "the original debt for the unpaid portion of the purchase money of said real estate and premises."

It further appears that J. W. Clark failed to pay the obligation in the deed of trust executed by him, and by virtue of its terms the mortgage company sold the lands in question, at which sale the W. C. Belcher Land Mortgage Company became the purchaser and thereafter sold to one W. M. Brown.

We deem it material only to further quote the following paragraphs of the agreed statement on which the case was submitted:

"It is further agreed that, if the facts herein stated show notice to the W. C. Belcher Land Mortgage Company of the claim, right, or interest of the plaintiffs herein to any part or portion of the subject-matter of this controversy, then in such event it is agreed that judgment may be entered in their favor against the W. C. Belcher Land Mortgage Company and the other defendants in this suit for the sum of $1,100, with 6 per cent. interest thereon from the date of the death of J. M. Clark, which was on March 30, 1920, which judgment shall also fix and establish a lien, with proper decree of foreclosure upon all of the lands described in the deed from J. M. Clark and wife to H. W. Byers, with the exception of that portion that is shown to be owned by Jeff Scoville, and subsequently purchased by the W. C. Belcher Land Mortgage Company.

"It is further agreed that, if notice is shown to the defendants by the facts herein stated, then judgment may be entered for the plaintiffs for $1,100, with 6 per cent. interest thereon from the date of the...