Jones v. Moore , 289 S.W. 709 ( 1926 )

Jones' contention here is that it appeared the $1,610.63 note he sued upon was secured by a valid and subsisting vendor's lien on the 42 acres of land, and that the court therefore erred when he refused to foreclose such a lien in his favor. The contention of the Moores, husband and wife, and the bank to the contrary is on the theory, it seems, that it appeared the $1,050 note, of which the $1,610.63 note was a renewal, had already been paid at the time Jones let J. O. Moore have the $1,000 to pay it, that the 42 acres was then the homestead of the Moores, and that the lien claimed by Jones therefore was not a valid one.

We think it is true, if the land was homestead at the time Jones let Moore have the $1,000, and if the $1,050 note to Underwood had then been paid, that Jones did not acquire a lien on the land securing the repayment of the $1,000 to him, for the Moores could not create a lien on land constituting their homestead, and which they were using as such, to secure a loan to them for any other purpose than to pay purchase money thereof. Section 50 of article 16 of the Constitution; Loan Co. v. Blalock, 76 Tex. 85, 13 S.W. 12; Wingate v. Loan Ass'n,15 Tex. Civ. App. 416, 39 S.W. 999.

On the other hand, if any part of the purchase money represented by the note to Underwood for $1,050 was unpaid at the time Jones let Moore have the $1,000, and the latter used same in paying such part of said $1,050 note, then Jones had a vendor's lien on the land as security for the payment of the part of the $1,000 included in the note made by Moore December 26, 1917, and in the note for $1,610.63 sued upon, which, as hereinbefore stated, was a renewal of said $1,000 and $1,050 notes; for it was undisputed in the testimony that Jones was induced to let Moore have the $1,000 because of his reliance upon Moore's assurance that the money was to be used in taking up a note secured by a vendor's lien on the 42 acres, and that Jones was to be subrogated to that lien. Mortg. Co. v. Taylor (Tex.Com.App.) 212 S.W. 647; Henderson v. Hawley (Tex.Civ.App.) 237 S.W. 341; Kangerga v. Willard (Tex.Civ.App.)191 S.W. 195; Thomas v. Ash (Tex.Civ.App.) 199 S.W. 670; Hicks v. Morris, 57 Tex. 658; Kallman v. Ludenecker, 9 Tex. Civ. App. 182,28 S.W. 579; Bellamy v. Mort. Co. (Tex.Com.App.) 278 S.W. 180; Mergele v. Felix, 45 Tex. Civ. App. 55, 99 S.W. 709; Hatton v. Lumber Co.,57 Tex. Civ. App. 478, 123 S.W. 163.

As is shown in the statement above, it appeared from recitals in the $1,000 note made to Jones December 26, 1917, and the $1,610.63 note made to him December 7, 1924, that those notes were renewals of the $1,050 note to Underwood for part of the purchase money Moore agreed to pay the Rayburns for the 42 acres of land, and that payment thereof was secured, as was said $1,050 note, by a vendor's lien expressly retained on the land. Hence when said notes for $1,000 and $1,610.63 were admitted as evidence Jones' contention that they were secured by a vendor's lien on the 42 acres was prima facie established, and he was entitled to a foreclosure of such a lien for at least the $800 and interest thereon from January 4, 1916, unpaid, on the $1,050 note December 26, 1917, when he let Moore have the $1,000, in the absence, as we think was the case, of proof showing the truth to be to the contrary of such recitals. Mustain v. Stokes, 90 Tex. 358, 38 S.W. 758; Neese v. Riley, 77 Tex. 348,14 S.W. 65. The Moores and the bank insist that such proof was not absent, and in support of that view refer to testimony showing that the $1,050 note was due January 1, 1915, and had been in J. O. Moore's possession "since 1917." They argue that under such circumstances it should be presumed that the $1,050 note had been paid before December 26, 1917, when J. O. Moore borrowed money of Jones to pay it. We do not think such a presumption should be indulged in the face of the testimony of J. O. Moore that he borrowed the $1,000 of Jones to use in paying off the $1,050 note, and in face of the fact that, testifying as a witness, he did not say when nor how the $1,050 note was paid, nor deny that it was paid with the money he obtained from Jones.

It follows from what has been said that we think it appeared that $800, and interest thereon at the rate of 10 per cent. per annum as stipulated for, of the $1,050 note to Underwood remained unpaid December 26, 1917, when Jones let J. O. Moore have the $1,000, and that, as said $800 and interest amount on said December 26, 1917, to $953.33, Jones then acquired a vendor's lien on the 42 acres of land to secure the repayment of that much of the $1,000 he let J. O. Moore have, as well as to secure the two notes to Pearson Taft. It seems, therefore, that the vendor's lien claimed by Jones should have been foreclosed for $3,814.23, instead of for $1,938.70 of the $3,892.72 found to be due Jones by J. O. Moore. The judgment will be reformed accordingly, and, as reformed, will be affirmed.