Honaker v. Jones

Mr. Chief Justice Gaines

delivered the opinion of the court.

This suit was brought by defendant in error, J. E. Jones, against plaintiffs in error, J. N. Shelton, W. B. Honaker and W. P. Herron, to recover of Shelton on three promissory notes and to enforce a lien for their payment. The first and second of the notes are each for $1,000 and are payable on the 14th day of December, 1895, and the 14th day of December, 1896, respectively, and each of which expresses that it is given for a part of the purchase money “for a livery stable and outfit with two lots of land situated in Farmersville, Collin County, . . . upon which a vendor’s lien is expressly retained to secure the payment hereof.” The third of the notes is dated 10th of June, 1903, and is for $260.75, due July 1, 1903, but contains no expressi on as to any lien. All the notes provide that in case they are put in the hands of an attorney for collection ten percent attorney’s fees shall be due.

We have examined the opinion of the Court of Civil Appeals in connection with the application for the writ of error and are satis-. fied that no error is pointed out save in one particular, which we shall now proceed to discuss.

The trial court decreed that a lien existed upon the lots of land which were originally sold by Jones to Shelton and Hill to secure the payment of the note for $260.75, for which judgment was given. The note as we have seen expresses no lien. To make it a lien it must have been given for a part of the purchase money for which the property was originally sold. Is such the fact? We think not. Shelton himself testified that a part of the note was for rent of the shed to the barn at $40 per annum; but for how many years he does not say. Jones in his testimony is just as indefinite. There were many transactions between Shelton and Jones and it is hardly probable that after this long lapse of time any one could tell how this $260.75 was involved and how much, if any, was a part of the original purchase money for the livery stable outfit.

Accordingly the judgment upon the two promissory notes for $1,000 each and with a decree enforcing a lien for their payment upon the property mentioned in the judgment will be permitted to stand and a personal judgment on the $260.75 note will be rendered but without any lien for its payment.

The judgment will be accordingly reformed and affirmed. The plaintiffs in error will recover the costs of the Court of Civil Appeals and of the Supreme Court.