DocketNumber: No. 3364.
Citation Numbers: 294 S.W. 317
Judges: WILLSON, C.J. (after stating the facts as above).
Filed Date: 3/31/1927
Status: Precedential
Modified Date: 1/13/2023
We think there is no merit in the contention urged by appellants that the trial court erred when he refused to instruct *Page 319 the jury to return a verdict in their favor.
One of the grounds of their motion to so instruct was that it conclusively appeared that the 67 acres of land was a part of the homestead of J. N. Buelin and wife at the date of their deed of July 30, 1921, conveying same to appellants, and at the time the ten promissory notes made by appellants were canceled and surrendered. Of course if it so appeared, it was error to overrule the motion to instruct as stated; for if the land was homestead at the time of the transactions specified, the creditors of J. N. Buelin had no right to complain thereof. Holt v. Abby (Tex.Civ.App.)
"Where one conveys land by deed to another and retains in such deed an express lien to secure a part of the purchase money, the legal title to the land conveyed does not pass to the vendee, but remains in the vendor until the purchase money is paid."
In the Brooks Case the court declined to express any opinion as to the legal effect of a supposed state of facts similar to those in this case. The holding in the Stratton Case is well-established law, but we do not think it means that when land constituting part of a homestead is sold on time the reservation of a vendor's lien to secure the payment of purchase money conclusively shows that the land continued to be homestead of the vendor until the purchase money was paid. The most that could be contended for where such a lien has been retained, we think, would be that it was a circumstance to be considered with other evidence in determining whether the sale operated as an abandonment by the grantor of his homestead right in the land or not. O'Fiel v. Janes (Tex.Civ.App.)
Another ground of the motion was based on facts as follows: December 13, 1922, the First National Bank of Enloe, one of J. N. Buelin's creditors, commenced suit against him on notes for sums aggregating about $5,500, and at the same time sued out writs of garnishment against appellants. After appellants as garnishees had answered that they were not indebted to said J. N. Buelin and did not have any property belonging to him in their possession, to wit, on January 5, 1924, said bank, "upon suggestion (quoting) by O. C. Mulkey, attorney for J. N. Buelin, that he had filed petition in bankruptcy," dismissed its suit against said J. N. Buelin and at the same time dismissed its garnishment suit against appellant. Plainly, we think, the dismissal of the garnishment suit was not "an adjudication of the matters" involved in the instant suit. Jackson v. Bank (Tex.Civ.App.)
The other ground of the motion was that it conclusively appeared that the transaction between J. N. Buelin and L. J. and O. M. Buelin, in which the ten notes were canceled and surrendered to the latter, "was a bona fide one and supported by an adequate consideration." But as we understand the record it did not so appear. There was no testimony rebutting the presumption that the ten notes were worth their face value (Ramsey v. Hurley,
The insistence that the judgment is fundamentally erroneous so far as it is in appellee's favor for interest on the $1,090 adjudged to him from November 20, 1922, the date when the ten notes were canceled and surrendered to appellants, is based on the fact that there was no finding by the jury that appellee was entitled to interest. We think the contention should be sustained. In his petition appellee alleged, and at the trial the parties agreed, that the notes by their terms were not to bear interest until January 1, 1924. The judgment of the trial court *Page 320 will be so reformed as to award appellee interest on the $1,090 adjudged to him only from its date, and as so reformed will be affirmed. As the error in the judgment was not called to the attention of the trial court, but was first complained of in this court, the costs of the appeal will be adjudged against appellants.
On Motion of Appellants for Rehearing.
When the record was first before us it was contended, and the contention is renewed in the motion, that the judgment against appellants was unauthorized in the absence, as was the case, of a finding by the jury that the consideration for the cancellation and surrender of the ten notes was inadequate. The jury having found that the indebtedness of J. N. Buelin to appellants amounted to only $2,960.82, and there being no evidence that the notes were worth less than their face value, to wit, $4,700, we thought it appeared as a matter of law that the value of the notes was $1,739.18 more than the sum reasonably necessary to discharge J. N. Buelin's indebtedness to appellants, and that appellants would have had no right to complain had the judgment been against them for that amount instead of for $1,090. We still entertain that view of the matter, and therefore overrule appellants' contention.
The contention that it was error not to sustain the fourth assignment of error, in which appellants complained that they were "not protected (quoting) in the order of sale on the original payment of $1,500, a part of the consideration paid them for the land," is renewed in the motion. We thought, and still think, the contention was without merit. The $1,500 represented a part of the purchase price of the land, just as the notes did, and no reason why appellants should have recovered it back was shown. If it should have been added to the $2,960.82 indebtedness of J. N. Buelin, it should also have been added to the amount of the ten purchase-money notes made by appellants, and the difference between the amount of the indebtedness and the value of the notes would still have been $1,739.18.
The motion is overruled.
Stratton v. Westchester Fire Ins. Co. of Ny. , 182 S.W. 4 ( 1915 )
O'Fiel v. Janes , 220 S.W. 371 ( 1920 )
Jackson v. Guar. St. Bank of Fort Worth , 266 S.W. 831 ( 1924 )
Qualls v. Fowler , 186 S.W. 256 ( 1916 )
Holt v. Abby , 141 S.W. 173 ( 1911 )