Waldon v. Davis

• Decision Date: 09 March 1916
• Docket Number: (No. 100.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 185 S.W. 1000
• Parties: WALDON v. DAVIS.
• Court: Texas Court of Appeals

185 S.W. 1000

WALDON v. DAVIS.

(No. 100.)^*

Court of Civil Appeals of Texas. Beaumont.

March 9, 1916.

Rehearing Denied April 20, 1916.

Appeal from District Court, Shelby County; W. C. Buford, Judge.

Action by W. I. Davis against James Waldon. Judgment for plaintiff, and defendant appeals. Affirmed.

D. M. Short & Sons, of Center, for appellant. Davis & Davis, of Center, for appellee.

MIDDLEBROOK, J.

This suit was brought in the district court of Shelby county, Tex., and sought judgment and foreclosure of vendor's lien for $715, as evidenced by two notes for $357.50 each. Note No. 1 was past due at the time of the filing of the suit, and under the terms of the notes, the second note was elected due. The notes retained a vendor's lien upon said lands, and a vendor's lien was also retained in the deed executed to Waldon at the time the notes were executed.

Numerous pleadings were filed by both sides, which, briefly stated, amount to affirmation by the plaintiff that he was the owner and holder in good faith, for a valuable consideration, of the note sued on, and that if the notes did not properly and legally retain a vendor's lien upon the land, and he was a purchaser in good faith for value of the notes, without notice or knowledge of any defense against the notes, and was therefore an innocent purchaser of the notes before their maturity. This plea was in addition to the ordinary plea for judgment and foreclosure of the vendor's lien.

Defendant answered by general denial, pleaded settlement of the original purchase-money note, and also pleaded simulation in the securing and execution of the notes, and that in reality the transaction was an attempt to create a mortgage upon the homestead of Waldon after the original purchase money had been paid.

The able trial judge filed very exhaustive conclusions of fact, which we copy, and which give a full statement of the case, as well as the facts supporting his conclusions.

"Findings of Fact.

"(1) I find that about 20 years ago, the testimony failing to show the date, W. D. Ellington contracted to sell James Waldon the land upon which plaintiff prays a foreclosure of the vendor's lien; and that Waldon, being a married man, a citizen of Texas, and the head of a family, moved on the land and has since continuously occupied it; that Ellington executed a bond for title binding himself to convey the land to the defendant upon payment of the purchase price, $600, with 10 per cent. interest per annum thereon from date of said bond for title until paid, which instrument was never placed of record, has been lost or mislaid, and is not in evidence.

"(2) I find that during all the time that the defendant occupied the land he paid no part of the purchase price, and that on January 1, 1911, he owed not only all the purchase money, but a considerable amount of interest, and that on that date the defendant owned a horse on which Z. W. Davis had a mortgage; that Ellington agreed to make to the defendant a conditioned deed to said land in consideration of said horse and of the execution of a vendor's lien note for $625; that Z. W. Davis agreed to allow the horse to be traded to Wellington in consideration of the defendant's agreement to make Z. W. Davis a deed to the land in question.

"(3) I find that W. D. Ellington, for the consideration named, did, by deed of date January 1, 1911, convey the land in question to Waldon retaining a vendor's lien, both in the deed and note to secure the payment of the $625, which amount was evidenced by Waldon's note bearing even date with said deed payable to W. D. Ellington, with interest thereon from date until paid at the rate of 10 per cent. per annum, interest payable annually, and said principal sum of said note being due and payable, $100 annually.

"(4) I find that on February 17, 1911, defendant, Waldon, and his wife, in compliance with defendant's agreement, by a deed absolute on its face, deeded the land in question to Z. W. Davis, the deed reciting a cash consideration of $600, although, in fact, there was no consideration other than the surrender by Z. W. Davis of his right to the mortgaged horse, by means of which defendant was enabled to secure the deed.

"(5) I find that at the time of making of this conveyance the defendant was indebted to Z. W. Davis in the sum of $600, which was evidenced by the defendant's note dated January 2, 1911, due November 1, 1911, payment of which was secured by a mortgage on some stock and the defendant's crop, to be produced on the land described in said conveyance.

"(6) I find that W. D. Ellington duly transferred the note for $625 to S. C. McKee, who was the owner of same, on November 23, 1912, on which date, Z. W. Davis, at the request of the defendant, Waldon, went to the Farmers' National Bank, in Center, Tex., which was holding said note and handling same for McKee, and paid to said bank the sum of $784.60, the defendant being present, and that in defendant's presence H. E. Norris, assistant cashier, delivered said note to Z. W. Davis; and that afterwards defendant renewed said note by a statement in writing on the back thereof, as follows:

"`Jan. 2, 1913, I hereby acknowledge this within note to be an honest and just debt, due Z. W. Davis, and I agree to pay the same.

                                 "`[Signed] James Waldon.'
                

"(7) I find that during the years 1912 and 1913, there was considerable dealings between defendant and Z. W. Davis, involving quite a considerable sum of money which was loaned by Z. W. Davis to defendant, to secure which mortgages on live stock and crops were given, but that on and prior to January 22, 1914, the defendant paid to Z. W. Davis all that he owed for borrowed money, which was secured by mortgages as aforesaid, and also paid a sufficient amount on the vendor's lien note then held by Z. W. Davis to reduce the amount due on same to the sum of $715; and that on said date, by agreement between the defendant and Z. W. Davis the latter conveyed the land in question to James Waldon, for the real consideration of the execution of two vendor's lien notes for the sum of $357.50 each, aggregating the amount Waldon then owed on said land note, due January 1, 1915, and January 1, 1916; said notes containing a provision authorizing the holder to mature each of said notes upon a failure to pay either of same or any installment of interest when due.

"(8) I find that on December 23, 1914, W. I. Davis, the plaintiff, purchased the notes and the superior title to said land, taking a written conveyance of said notes and land, which conveyance was duly signed and acknowledged by Z. W. Davis and by him delivered to plaintiff, who paid a valuable consideration therefor, after an examination of the records of the deeds above mentioned, all of which I find are in every respect regular upon their face, with the acknowledgments thereto in statutory form, that neither of said notes was at said time due, and that ...