Matthews v. Towell , 1911 Tex. App. LEXIS 810 ( 1911 )

In our view of the case we need only consider the assignments which complain of the court's action in sustaining the special exceptions to plaintiff's original petition. The allegations in the petition to which the exceptions were taken must for the purpose of determining its sufficiency as against them be taken as true. Taking such averments as established facts, it will be perceived that the time of payment of each and every note upon which plaintiff's claim and demand against the defendant's intestate's estate is based, was, during the lifetime of decedent, upon a valuable consideration, extended from year to year. It is now too well settled to admit of question that the extension of the time of the payment of a promissory note or other chose in action, based upon a valuable consideration, for a definite period, is a new contract against which the statute of limitations does not begin until the expiration of the period of such extension. Benson v. Phipps, 87 Tex. 578,29 S.W. 1061, 47 Am. St. Rep. 128; Robson v. Brown, 57 S.W. 83, 686; Casey-Swasey Co. v. Anderson, 37 Tex. Civ. App. 223, 83 S.W. 840; Carter-Battle Grocer Co. v. Clarke, 91 S.W. 882; Wright v. Deaver,52 Tex. Civ. App. 130, 114 S.W. 165; Fambro v. Keith, 122 S.W. 40; Kearby v. Hopkins, 14 Tex. Civ. App. 166, 36 S.W. 506.

The extensions of the time of payment of the several claims having been by agreement of plaintiff and decedent, upon valuable considerations, for a definite period of only one year commencing from the date of each extension, and it being apparent from the allegations that four years had not elapsed from the time of the last extension of each note to the time of Robbins' death, none of the claims upon which the action is based is barred by the statute. The several contracts of extension, being for only one year's time, were not within the statute of frauds. Besides, if the contracts of extension were required to be in writing to relieve them from such statute, it could have been proved on the trial that they were in writing without its having been averred in plaintiff's petition.

The several mortgages securing the indebtedness, having been made by the decedent on his own property, being merely incidents to the debts they were made to secure, were not affected by the contracts extending the time of their payment, but remained in full force and effect as such security. Jones on Mort. § 942; Wiltsie, Mort. Foreclosure, §§ 53, 54.

For reason of the error in sustaining said exceptions to plaintiff's original petition, the judgment is reversed and the cause remanded.