Windom v. Howard

• Decision Date: 10 January 1894
• Citation: 26 S.W. 175
• Parties: WINDOM v. HOWARD et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

Page 175

26 S.W. 175

WINDOM v. HOWARD et al.¹

Court of Civil Appeals of Texas.

January 10, 1894.

Appeal from district court, Collin county; P. B. Muse, Judge.

Action of trespass to try title by Howard and Hume, as administrators of the estate of Thomas C. Bean, deceased, against J. G. Windom, and to foreclose a vendor's lien on the land in dispute. From a judgment establishing and foreclosing the vendor's lien, defendant appeals. Reversed and rendered.

D. P. Johnson, for appellant. Evans & Evans and M. H. Garnett, for appellees.

RAINEY, J.

Suit instituted March 12, 1891, by appellees, as administrators of Thomas C. Bean, deceased, in action of trespass to try title to recover of appellant a certain tract of land in Collin county. Appellant answered "not guilty," limitation of three years, suggestion of improvements in good faith, and claimed under deed from Thomas C. Bean. July 20, 1891, appellees filed their first supplemental petition, setting up a certain note as the consideration for the land, and alleging that, although the note was barred, the appellant had promised, in writing, to pay the note, and praying judgment, in the alternative, for foreclosure of the vendor's lien in case they were not entitled to recover the land. Appellant replied by first supplemental answer, and moved to strike out said supplemental petition for the reason that it was not a reply to any matter set up in the original answer, and specially excepting to the alternative form of relief asked, and specially excepting to said supplemental petition because it alleged a new cause of action, and changed the nature of the suit; plea of statute of limitations to the note, and alleged new promise, — which were by the court, in all things, sustained, except that the court held that "the allegations in said supplemental petition were sufficient for, and did stop the running of the statute of limitations," to which plaintiffs excepted. Appellees, on the 16th of February. 1892, filed their first amended original petition, alleging ownership of the land in Thomas C. Bean at the time of his death; sale of the same to appellant by deed, describing a certain note as consideration; that the note has not been paid; death of Bean, and appointment of appellees as his administrators; that, although the note sued on was barred, defendant had promised to pay said note, as evidenced by Exhibits A, B, and C, thereto attached, and praying that the vendor's lien be foreclosed, etc. Appellant replied by second supplemental answer, containing general denial, general and special exceptions, all of which were overruled by the court, to which defendant excepted. The case was submitted to the court on the pleadings and agreed statement of facts. The court rendered judgment in favor of appellees for $1,507.20, foreclosing the vendor's lien, and ordering the land sold, to which defendants excepted.

The first assignment of error relates to the action of the court in holding that the filing of appellees' first supplemental petition stopped the running of the statute of limitation. If the supplemental petition filed July 20, 1891, set up a new cause of action, the claim of appellees is barred by limitation, unless the letters from appellant to Thomas C. Bean constitute a new promise to pay the same. Bean, on March 26, 1881, conveyed, by deed in writing of that date, to Windom, the land in controversy. In consideration therefor, Windom executed his note, which was described in the deed. Under such a deed the title to the land passed to Windom, subject to the vendor's lien only. The title having passed out of Bean, the action in trespass to try title to the land by his administrators did not stop the running of limitation against the note, for this action is entirely dissimilar to the action of debt and foreclosure of lien. No lien being reserved, the only remedy plaintiffs had was the foreclosure of the lien upon the land. Having failed to ask this relief in their original petition, the running of the statute of limitation was not interrupted until the filing of the first supplemental petition by plaintiffs on July 20, 1891, if then. Bynum v. Preston, 69 Tex. 287, 6 S. W. 428. From this it follows that plaintiffs' claim was barred by limitation, unless a new promise to pay the same was made within a period next prior to the filing of said new cause of action, sufficient to prevent the bar. On January 8, 1886, defendant, Windom, wrote a letter to said Bean, in effect, acknowledging the justness of said debt, and promising to pay the same. Deducting the 12 months during which the statute of limitation was suspended after Bean's death, from the time said letter was written until said supplemental petition was filed, more than four years elapsed, and this promise does not relieve the bar.

Defendant wrote two other letters to said Bean, one of date December 9, 1886, and the other February 1, 1887. These letters evidently refer to an indebtedness due to Bean, but in neither of these is there a promise or willingness expressed to pay the note sued on. In these two letters there is a statement that the writer had before written to Bean in reference to the debt. Plaintiffs insist that this is sufficient to connect the letter of January 8, 1886, with these last two, and make the promise to pay as of February 1, 1887, and of December 6, 1886. We cannot accept this view of the case. Give the statements in these last two...