McCraw v. Robinson , 1922 Tex. App. LEXIS 530 ( 1922 )

The appellant challenges the court's finding of fact in paragraph 7, and the conclusion that the vendor's lien securing the amount of the first note was barred by limitation. The points made are: (1) That the defendant C. L. Gee, having assumed to pay the amount of both of the notes, reduced to $150 each, when he accepted the deed to him from E. C. Summers, dated October 5, 1917, the assumption of the debt was in writing, and the statutes of four years limitation were applicable, and began to run against C. L. Gee from the date of the assumption to pay same, there being no agreed date in the future in which to pay same; and, (2) C. L. Gee having given an express vendor's lien to secure the payment of the debt evidenced by the two notes of E. C. Summers when he accepted the deed to the land, the court erred in not foreclosing such contract lien.

The court's findings of fact are, in effect, by proper interpretation, that C. L. Gee did not assume to pay the notes according to their face and tenor, but did assume to pay, as his personal obligation, the debt of E. C. Summers owing by him as a part of the consideration for the land, as evidenced by the notes of E. C. Summers, then held and owned by appellant, McGraw. The evidence fully supports the court's findings in that respect. The deed of E. C. Summers accepted by C. L. Gee, dated October 5, 1917, conveyed the land to C. L. Gee, and he acquired it, "in consideration," as the deed recites, "of the sum of $600," which was "paid and secured to be paid by C. L. Gee." Of the $600.00 "$300.00 cash," as recited, was "in hand paid," and the remaining $300.00 was to be evidenced by the two vendor's lien notes described, which, by their description and the evidence of C. L. Gee, are identified as the two vendor's lien notes given by E. C. Summers and held and owned by the appellant. And C. L. Gee testifies:

"I bought the land from E. C. Summers. I bought the land for $600. I let him (Summers) have $100 worth of live stock, paid him $150 in money, and paid over to McCraw $50."

This evidence admits the consideration recited in the deed is correct, and that it was in fact the agreement. Further, C. L. Gee testifies:

"I did not assume the notes. I knew they were against the land, and I agreed to pay them, the two notes, for $150 each. The notes that are mentioned in the deed on which this suit is brought are the two notes of $162.50 each. I paid the interest and also $12.50 of principal of each note at the time of deed. Mr. McCraw got the money."

Clearly the undertaking of C. L. Gee, as shown by the deed, was to purchase and acquire the land for "the sum of $600," which sum was by C. L. Gee to be "paid and secured to be paid" in the agreed manner of $300 cash and "two vendor's lien notes dated October 23, 1915, for the sum of $150.00 each." And the deed expressly retains a vendor's lien against the land conveyed to secure the payment of the two notes. It was not an agreement to pay "the sum of $600.00" and to take the land "subject" to the two outstanding vendor's lien notes, but it was an agreement that the debt itself, evidenced by the two outstanding vendor's lien notes and made a part of the $600 consideration, was to be "paid and secured to be paid by C. L. Gee." The recitals in the deed constitute, we conclude, an express agreement on the part of C. L. Gee to pay the debt of E. C. Summers, principal and interest, evidenced by the two vendor's lien notes. When C. L. Gee assumed to pay the obligation of E. C. Summers as a part of the consideration for the land, such obligation became the debt of C. L. Gee, for which he is liable to E. C. Summers or to the legal owner and holder of the same under him. And accepting the deed, as C. L. Gee did, in which he assumes both to pay and "secure to be paid" the debt specified, the four-year statute of limitation applied, being a contract founded upon a written instrument. Smith v. Nesbitt (Tex. Sup.)230 S.W. 976. Therefore the court did not err in entering a personal judgment for the sum of both the notes. But we think the court did err in refusing to foreclose the vendor's lien for the sum of both the notes. The debt evidenced by the first note was not barred by limitation, and neither was the vendor's lien, sought to be foreclosed, barred by limitation at the time the suit was brought. Limitation of four years began to run from the date that C. L. Gee assumed to pay, as his personal obligation, the debt evidenced by the two notes. For as there was no date fixed, in the agreement or the deed, at any time in the future on which C. L. Gee was obligated by his promise to pay the debt, the law, in these circumstances, would imply that the debt, at least that evidenced by the first note, was intended to be paid on demand at any time made from the date of the agreement. Consequently limitation would begin to run from the date of making the promise, when demand for payment could have been made upon C. L. Gee. And having given, as Gee did, an express contractual lien to secure the payment of the debt, such lien could be legally foreclosed, and should have been in this case. The lien was not barred until four years from the date it was expressly given by C. L. Gee in his deed to him, and at the time the suit was filed the four years had not expired by some months.

The judgment denying a foreclosure of the lien as to the debt of the first note seems to have been founded on the conclusion that limitation began to run against the first note from its maturity as expressed on its face, and that any extension of the lien was not made under the terms of article 5695, R.S., so as to be enforceable thereafter. The appellant Gee did not assume the note according to its face and tenor. The note was due and payable according to its face on "December 1, 1916," nearly 10 months before appellee Gee's promise or obligation was undertaken by him. It was impossible for him to pay it at the date it was due according to its face. He merely assumed the debt itself, evidenced by the note, which was payable by him from and after his promise to pay same. The lien given by Gee was not a renewal or the extension of the prior lien of E. C. Summers, but a new and distinct contract lien by C. L. Gee to E. C. Summers, inuring to the benefit of the holder and owner of his debt. The statute and the authorities cited have no application to the facts of this case.

The judgment is modified so as to allow, foreclosure of the vendor's lien as to both the notes, and, as so modified, is affirmed. The costs of appeal are taxed against appellee C. L. Gee.