Gray v. Tiller

HODGES, J.

The appellee, Mrs. Tiller, filed this suit against the appellants, West Gray and wife and Bid Gray, to recover the balance due on three promissory notes and to foreclose a vendor’s lien on a tract of land. H. N. Nelson was made a party defendant upon the ground that he was claiming an interest in a portion of the land. It was shown upon the trial that Bid Gray had transferred his interest to Mattie Gray, the wife of West Gray, and ‘that she had assumed the payment of his obligations. He was awarded a judgment upon his plea of limitation. The remaining defendants pleaded payment and shortage in the amount of the land for which the notes were given.

In response to special issues, the jury found that in January, 1921, a balance of $1,200 was due upon the notes. They also found that the land had been sold by the acre, and that it was 23 acres short. A judgment was entered in conformity with the findings of the jury.

The testimony about which there is no dispute shows substantially the following facts: In December, 1910, Mrs. Iola Adams, the mother of Mrs. Tiller, sold a tract of land described as “206 acres” to West and Bid Gray. She took in part payment their four notes for the sum of $362 each, bearing interest at the rate of 10 per cent, per anmtm from date. The notes were payable one each 3rear thereafter till all of them were paid. Mrs. Adams died sometime prior to 1920, leaving an estate and several children. In December, 1921, her children met for the purpose of dividing their mother’s property. They found- among the assets three of the notes above referred to. Being unable to determine just how much was still due, they had a conference with West Gray. According to the testimony offered by the appellee, after deducting all the credits claimed by Gray, there was a balance due of $1,200, and that sum was agreed upon by all the interested parties. The notes were then taken by Dr. O. O. Adams, one of the heirs, upon that basis, as a part of his interest in his mother’s estate. Later he sold and assigned the notes for a valuable consideration to his sister, the appellee in this suit. The notes and lien had been extended from time to time, so that no question' of limitation was presented. In 1922, after Mrs. Tiller had purchased the notes, another contract of extension was executed by Gray and wife, in which it was recited that $1,200 had been agreed on as the balance due in the family settlement. No further payments were made upon the notes, and no claim of payment in full was made until after the institution of this suit.

The appellants contend in this appeal that the evidence conclusively shows payment in 1920; that the extension of the debt thereafter made was without consideration. It is also contended that, since the land was the homestead of the Grays, it could not be incumbered for a debt they did not owe, or one which was not for the purchase money. It appears from the evidence that the first note bore all the credits entered by Mrs. Adams, and these amounted to something-more than was necessary to satisfy the principal of that note. On each of the other notes had been indorsed, apparently in the handwriting of Mrs. Adams, the following: “Interest paid on this note to 12-12, 1918.” Whether that payment was distinct from those.indorsed on the first note is not shown. Gray and wife testified to other payments, evidenced by some receipts, which they made to Mrs. Adams. Those receipts, however, while in Mrs. Adams’ handwriting, were not signed, and one of them did not state for what purpose the payment had been made or Row it was to be applied. The record shows that West Gray owed Mrs. Adams other debts besides those evidenced by the land notes. In his testimony he was unable to point out any particular payments that he made at any specific time other than those evidenced by the indorsements on the note and the receipts..

The court had a right, if he saw proper, to discredit the testimony of Gray and his wife, dnd to conclude that the settlement made in 1921 was just and fair, and made at a time when the parties were prepared to ascertain the correct amount due. We cannot say, as a matter of law, that the court or the jury erred in their conclusions upon the facts of this case.

The judgment will therefore be affirmed.

We overrule the remaining assignments of error without discussion.