Wilcox v. Tennant

• Decision Date: 18 April 1896
• Citation: 35 S.W. 865
• Parties: WILCOX et al. v. TENNANT.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

35 S.W. 865

WILCOX et al. v. TENNANT.¹

Court of Civil Appeals of Texas.

April 18, 1896.

Appeal from district court, Liberty county; L. B. Hightower, Judge.

Action by George B. Tennant against A. C. Wilcox, Bettie Bryan, and Francis McWilliams on notes given by Wilcox to the other defendants, who indorsed and transferred them to plaintiff, and to enforce a vendor's lien. Defendants Bryan and McWilliams filed a cross bill against plaintiff and defendant Wilcox. From the judgment, defendants appealed, but the appeal by Wilcox was abandoned. Reversed as to the other defendants, and judgment rendered in their favor on their cross bill.

G. H. Pendarvis, J. L. Hudson, H. L. McWilliams, and W. S. Hunt, for appellants. Geo. H. Breaker, for appellee.

WILLIAMS, J.

The transactions out of which this suit arises were as follows: On June 14, 1893, the appellants Bettie Bryan and Francis McWilliams conveyed to their co-appellant, A. C. Wilcox, a league and two sections of land in Liberty county, aggregating in amount about 5,700 acres. For part of the purchase money, Wilcox executed and delivered to his vendors 28 notes, for $500 each, secured by a vendor's lien on the land. The league and one of the sections were incumbered by a mortgage of $16,000, and the other section by a mortgage for $2,048. The mortgagees are not parties to this suit, and the mortgages are in no way affected by it. The payment of these mortgages and the interest thereon was assumed by Wilcox. On December 15, 1893, Wilcox conveyed to the appellee, Tennant, an undivided one-fourth of the land; Tennant assuming the payment of one-fourth of the mortgages, and one-fourth of the purchase-money notes given by Wilcox to Bryan and McWilliams. Thereafter, 10 of the purchase-money notes given by Wilcox having been paid, Bryan and McWilliams released their lien as to a portion of the land aggregating about 2,316 acres. On April 10, 1894, Wilcox executed and delivered to Tennant a deed absolute on its face, reciting a consideration of $12,000 paid, and conveying an undivided three-fourths of about 1,700 acres of the land which had been released by Bryan and McWilliams, Tennant having acquired one-fourth by the previous deed. Contemporaneously with the execution of said deed, there was executed between Tennant and Wilcox an instrument as follows: "This memoranda witnesseth, that the undersigned A. C. Wilcox has this day executed and delivered to the undersigned G. B. Tennant a deed conveying to said Tennant the following described property, situated in Liberty county, Texas, to wit: The undivided three-fourths of blocks 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 29, 30, 31, 33, 34, and 35 in the town of Raywood, also lots 1, 2, 3, 4, 13, 14, 15, 16, 17, 18, 19, 20, 27, 28, 29, 30, 31, 32, 36, 37, 59, 61, 62, 65, 69, 70, 71, 72, 75, 76, 87, 91, 101, 102, 105, 109, and 110 in Raywood property. And it is understood and agreed that in the event that the said Wilcox shall, at the respective dates of maturity thereof, pay, take up, and have canceled each of the following promissory notes, to wit, a certain note this day executed and signed by Wilcox, payable to G. B. Tennant, of even date herewith, payable on or before the first day of October, 1894, for the sum of $1,216.62, and the three-fourths of the note for $1,600 due June the first, 1894, described in the deed of trust executed by Blackshear to Drought, trustee, for the use of Francis S. Smith, recorded in Book 2, pages 240 to 246, of the Record of Mortgages of Liberty County, Texas, and each and all of the notes, principal and interest, now remaining unpaid, described and secured by the deed executed by Francis McWilliams and wife and Bettie Bryan to A. C. Wilcox, recorded in Book L, pages 521-4, of the Record of Deeds of Liberty County, Texas, and vendor's lien therein, then the said G. B. Tennant shall convey to said Wilcox the said lots and blocks this day conveyed to him by said Wilcox by the deed of even date herewith above mentioned. But it is expressly understood and agreed that the said above-mentioned deed of even date, this day executed by said Wilcox to said Tennant, is a conditional sale, and not a mortgage, and that in the event that the said Wilcox shall fail or elect not to pay or take up any one or more of said notes above mentioned, principal and interest, as they mature, then the said note above mentioned, of even date herewith, executed by the said Wilcox to the said Tennant, if not already paid by the said Wilcox, shall be null and void, and the said deed of even date herewith, executed by said Wilcox to said Tennant, shall be and become absolute, final, irrevocable, and shall invest in the said Tennant a complete, fee-simple interest and title in the property therein mentioned, without further action, proceeding, or foreclosure on the part of said Tennant. In testimony whereof, we have hereunto set our hands this, the 10th day of April, 1894. Executed in duplicate. [Signed] A. C. Wilcox. G. B. Tennant."

On or about June 1, 1894, an installment of interest of $1,600 on the Francis Smith mortgage for $16,000 became due. The payment of the interest was essential to the protection of the respective interests in the land of all the parties to this suit; and as an inducement to the appellee Tennant to pay said installment of interest the appellants Bryan and McWilliams on June 2, 1894, indorsed and delivered to Tennant two of the purchase-money notes given to them by Wilcox, and thereafter Tennant paid the said installment of interest on the Francis Smith mortgage. On June 5, 1894, Tennant notified Wilcox that by reason of his failure to pay his (Wilcox's) proportion of interest on the Francis Smith mortgage due June 1, 1894, the deed of April 10, 1894, from Wilcox to Tennant, had become absolute; and thereafter Tennant returned to Wilcox the note of Wilcox for $1,216.62, described in the contract, canceled. Wilcox having failed to pay the purchase-money notes given by him to Bryan and McWilliams at their maturity, Tennant filed this suit on February 2, 1895, praying for judgment against Wilcox for the amount of the two of said notes held by him, with foreclosure of lien, and also praying for judgment against Bryan and McWilliams as indorsers.

The defendant Wilcox answered that the deed of April 10, 1894, conveying to the plaintiff three-fourths of 1,700 acres of the land, was in fact a mortgage to secure to said Tennant—First, the payment by Wilcox of the note for $1,216.62 described in the contract of defeasance; second, the payment by Wilcox of three-fourths of the interest due June 1, 1894, on the Francis Smith mortgage; and, third, the payment by Wilcox of the unpaid purchase-money notes held by Bryan and McWilliams. Defendant Wilcox admitted his default in payment of the indebtedness so secured, and the right of plaintiff, under the contract of defeasance, to elect to declare the deed absolute, but alleged that, upon so doing, plaintiff became liable and bound to pay the whole of the said installment of interest on the Francis Smith mortgage, and the whole of the notes held by Bryan and McWilliams, such payment being the consideration to be paid by plaintiff for the land. Defendant Wilcox denied that plaintiff was the owner of the two notes sued on, or had any right to recover thereon. Defendant Wilcox prayed that plaintiff take nothing, as against him, upon the two notes sued on, and that, in case judgment was rendered in favor of Bryan and McWilliams upon the whole of the unpaid notes held by them, he have judgment over against plaintiff, and that the 1,700 acres of land conveyed to plaintiff by the deed of April 10, 1894, be first sold in satisfaction of the lien of said notes. The...