Young v. Maple

• Decision Date: 29 January 1938
• Docket Number: No. 3169.,3169.
• Citation: 113 S.W.2d 244
• Parties: YOUNG v. MAPLE et al.
• Court: Texas Court of Appeals

113 S.W.2d 244

YOUNG v. MAPLE et al.

No. 3169.

Court of Civil Appeals of Texas. Beaumont.

January 29, 1938.

Rehearing Denied February 9, 1938.

Appeal from District Court, Cameron County; A. M. Kent, Judge.

Action by Laura E. Lamberson Maple and others against Charles N. Young, to recover balance allegedly due on a vendor's lien note and for foreclosure of the vendor's lien. Judgment for plaintiffs, and defendant appeals.

Affirmed.

Jesse G. Foster and R. F. Robinson, both of Raymondville, Seabury, Taylor & Wagner, of Brownsville, and William D. Orem, of Houston, for appellant.

West & Hightower, of Brownsville, for appellees.

WALKER, Chief Justice.

This appeal was prosecuted to the San Antonio Court of Civil Appeals, and transferred to this court by orders of the Supreme Court. Tried to the court without a jury, the case before us was an action by appellees, Laura E. Lamberson Maple et al., filed 10-3-1935 against appellant, Chas. N. Young, praying for judgment for the balance due on a vendor's lien note dated 7-11-1927 for the sum of $18,814 due five years after date, with interest at 6 per cent. per annum from date, and 10 per cent. attorney's fees, executed by W. A. Harding to H. A. Lamberson in part payment of 653 acres of land in Willacy county, and for foreclosure of the vendor's lien against this land. Appellees alleged that on the 9th day of April, 1929, W. A. Harding conveyed this land to the Delta Orchards Company; on the 21st day of April, 1932, the Delta Orchards Company conveyed it to the Rio Grande Properties Company; on the 1st day of March, 1935, the Rio Grande Properties Company conveyed it to appellant, Chas. N. Young; that, as a part of the consideration, each of the grantees assumed the payment of the note sued upon. Appellant's defenses were: (1) That the note sued upon was barred by limitation when this suit was filed, and (2) appellees did not own, and did not hold a justiciable interest in, the note sued upon. The judgment of the court was in favor of appellees against appellant for the relief prayed for.

Measured by its maturity date, the note in issue was not barred by limitation. But the holder accelerated its payment and instituted suit thereon on August 3, 1930, against Delta Orchards Company, who at that time held title to the land and by direct assumption had assumed its payment as part of the purchase price of the land. This suit was dismissed on the 6th day of October, 1930; the order of dismissal recited payments on the note, reducing it to $12,500, and renewal of the note for the unpaid balance, as of its original maturity date. From the maturity date of the note, resulting from its acceleration, the note was barred when this suit was filed on the 3d day of October, 1935. Appellant contends that he was an innocent purchaser of the land against the renewal of the note by the judgment of dismissal. This contention is denied. The deed to appellant from Rio Grande Properties Company, dated the 1st day of March, 1935, recited the following consideration:

"The considerations of this conveyance as follows:

"(1) The sum of Ten and No/100 ($10.00) Dollars cash, and other good and valuable consideration paid by said grantee, receipt of all of which is hereby acknowledged by the undersigned grantor.

"(2) The grantee herein does by the acceptance of this deed assume and agree to pay all taxes and public assessments against said real estate and further assumes and agrees to pay all indebtedness secured by lien or liens of record against said respective parcels of real estate."

By accepting this deed, appellant agreed to pay, and became liable and bound to pay, all outstanding indebtedness against the 653 acres of land, which included the note in issue. By his express assumption and agreement to pay the note, he made it his personal obligation, as of even date with his deed.

There is no merit in appellant's contention that he was not bound to pay the note because his assumption contract did not refer to the maker of the note or notes, their dates, their amounts, the date of their maturity, rate of interest, or when they were payable. His deed, the recitals in his deed, the abstract of title to the land, the examination of the abstract by his attorney —these facts and circumstances gave him all the information called for in his proposition. To sustain appellant's proposition would amount, in substance, to a gift to him of the 653 acres of land, leaving his grantors, under their prior assumption contract, obligated to pay this note, with no recourse against the land.

We overrule appellant's contention that he was an innocent purchaser against the renewal of the note by the judgment of dismissal entered in the suit against Delta Orchards Company, as described above. The facts were sufficient to support the court's judgment on the theory that appellant had notice of this renewal. But we pretermit a discussion of the evidence on this point, and the law controlling the evidence, because appellant was bound and obligated to pay the note by his express assumption agreement.

Appellees owned and held such an interest in the note as entitled them to file and prosecute this suit. On this point we adopt the following statement from appellees' brief:

"On the trial, plaintiffs as owners and holders thereof produced and offered in evidence the Note No. 1 sued on by them together with all the endorsements thereon. Among others, this note bore on the back thereof endorsement as follows:

"`August 21, 1936, I hereby sell, transfer and assign to Laura E. Lamberson Maple, Hallie Lamberson Cook formerly Hallie Lamberson Capshaw and Preston Taulbee, 85% of the within note together with all liens upon the property securing payment of the same. Laura E. Lamberson Maple, Administratrix with will annexed de bonis non of the Estate of H. A. Lamberson deceased.'

"In the trial on the Pleas in Abatement as well as on the merits, Appellees offered in evidence duly authenticated copies of certain proceedings in the Probate Court of Sedwick County, Kansas, in a certain cause therein pending, styled: `In the Matter of the Estate of H. A. Lamberson, deceased', being:

"(a) The Petition of Dora Lee Adair to probate the Last Will and Testament of Lamberson, deceased, which petition recites that the instrument in writing therewith filed purports to be the Last Will and Testament of Lamberson who died November 23, 1934, at which time he was a resident of Wichita, Sedwick County, Kansas; that decedent left surviving him three and only three heirs at law, to-wit: Laura E. Lamberson Maple, Hallie Lamberson Capshaw, both daughters and Preston Taulbee, grandson, each of legal age and each being legatees and the petitioner therein prays that such instrument in writing be admitted to record and probate in that Court as the Last Will and Testament of the deceased.

"(b) The Last Will and Testament of Lamberson, deceased, in which he named Dora Lee Adair as his Executrix, and provided that after the payment of his debts and administration costs the Executrix shall then distribute his estate share and share alike between his children, Laura E. Lamberson Maple and Hallie Lamberson Capshaw, and his grandson, Preston Taulbee, who shall take the share of his mother who was decedent's daughter, Anna Lamberson Taulbee, as such deceased daughter would have taken if living.

"(c) Proof of said Will.

"(d) Letters Testamentary of Dora Lee Adair.

"(e) Order admitting Will to Probate and appointing Dora Lee Adair Executrix.

"(f) Order of the Court showing resignation of Executrix and appointing...