Daugherty v. Eastburn , 74 Tex. 68 ( 1889 )

Henry, Associate Justice.

Appellee sued appellant to recover the . amount of a promissory note and to foreclose a vendor’s lien on two hundred acres of land, described by metes and bounds in the petition and alleged to be part of the Elijah Price survey in Jack County.

The note was made payable to the order of S. P. Glenn and the only reference to the consideration that it contains is in the following words: “This note is given as the deferred payment on the Elijah Price survey of land in Jack County, Texas, this day conveyed to me by S. P. Glenn and G. E. Glenn.”

The statement of facts shows that no evidence except the note and its endorsements was offered at the trial. Besides some credits the endorsements are, first, an assignment of the note by Glenn, the payee, to Edward Eastburn, and next the words, “Pay Merchant and Planter’s Bk. for cr. of Edward Eastburn.”

Judgment was rendered in favor of plaintiff for the amount of the note, including an attorney fee provided for in the note, and for foreclosure of the lien on the two hundred acres of land described in the petition.

The errors complained of are:

1. The evidence shows that plaintiff was not the owner of the note.

2. That the judgment is excessive. »

3. That there is no evidence supporting the decree foreclosing vendor’s lien.

With regard to the first objection we construe the endorsement referred to to show that it was made for the purpose of collection only, and as such it was subject to recall at pleasure. Dan. on Neg. Ins., sec. 699. The note being in the possession of and produced by the party making the endorsement i's sufficient evidence of his continued ownership, at least in the absence of a special plea.

The third objection is good. Before a decree foreclosing the lien claimed can be rendered it must be proved that the note was given for the purchase money of the land described in the decree. If the note had contained a full description of the land it would have been sufficient to have followed it. The evidence does not show that the land specifically described in the petition and the decree forms any part of the Elijah Price survey, and for this error the judgment must.be reversed. If the judgment is excessive it results from a miscalculation of the interest, which need not occur on another trial.

The judgment is reversed and cause remanded.

Reversed and remanded.

Delivered May 17, 1889.