Lawler v. Yeatman , 37 Tex. 669 ( 1873 )

Walker, J.

This suit was brought on a promissory note made by Joseph S. Martin, payable to P. J. Malone, for twelve hundred and sixty-five dollars. The petition was filed on the 21st day of March, 1859. The note specifies that it is given for lots Mo. 1 and 2 in block 4, and we suppose the property to be situated in the town of Prairie Lea.-

The original petition sets up no vendor’s lien, but is a simple suit on a promissory note. The cause remained upon the docket in this condition for about twelve years. In the meantime Martin intermarried with the appellant, now Mrs. Lawler. Of this marriage one son was born. Martin and wife occupied the property in question as a homestead. After Martin’s death, his estate was administered, and the property was set apart by the probate court as a homestead to his widow and minor child.

On the 27th of March, 1871, the appellee filed a supplemental petition. Mrs. Martin having intermarried with It. A. Lawler, they, as well as the minor son, Joseph T. Martin?, who has since died, were made parties; and now for the first time the plaintiff sets up a vendor’s lien.

The case has been twice tried in the District Court with different results. There was an administrator de bonis non of the estate of Martin appointed ; and on the last trial,, verdict and judgment went against him and appellants, from which the latter have appealed.

"We do not deem it necessary to notice the hills of exception or the errors assigned in their order. We think that this case comes within the rule laid down in De Cordova’s Administrator v. Smith’s Administrator, 9 Texas, 129; Luter v. Rose, 20 Texas, 648; Rogers v. Green, decided at the last term. (35 Texas, 730.) The plaintiff elected to take a judgment in ^personam when he brought his suit in 1859, and after a lapse of twelve years without claiming a vendor’s lien, the presumption will arise that the lien was waived; and this presumption is the more strongly invoked by the facts in this case. The plaintiff stood by during the settlement of Martin’s estate, and saw this property assigned to the widow and minor child as a homestead, when they might, in all probability, had he asserted his lien, received the widow’s and minor’s allowance from other property. From this they are now cut off, and no court would favor the claims of one guilty of such laches, where the rights of others, and especially widows’ and orphans?, are to be thus prejudiced.

The judgment of the District Court is reversed, and the cause remanded.

Beversed and remanded.