Henderson v. Hawley

LEVY, J. (after stating the facts as above). The appellants’ propositions, based on proper assignments of error, are: (1) That it was error for the court to overrule the general demurrer to the petition. (2) The evidence does not show that the release of the vendor’s lien was obtained through false and fraudulent representations, but that the evidence conclusively establishes the mutual intention and agreement of the parties to have the release and cancellation of the vendor's lien made, executed and recorded. (3) That the evidence establishes an express agreement between the parties of purchase and sale of the land, and that in legal consequence of the agreement Callie Hawley is remitted to a suit in specific performance, as her only remedy, of the contract to convey the land. (4) That the vendor’s lien having been released by deed, the superior title retained by the original vendor of the land was thereby vested in Jim Henderson, the original vendee, and the deed subsequently made by the Farmers’ State Bank of Big Sandy, the original vendor, to Callie Hawley, conveyed no title to her giving the right of suit in trespass to try title. [1] The general demurrer was directed to the petition in its entirety, and the court overruled such demurrer, and we think there is no reversible error in the ruling. The petition had two separate and distinct counts, one of which expressly averred title to the land to be in the plaintiff “in fee simple,” and wherein she specially and affirmatively prayed for the recovery of the land. Wherefore a general demurrer did not, we conclude, lie to the petition in its entirety, and the court could not-have sustained it. Any other question in respect to the petition is not presented, and the proposition and assignments of error are overruled. It is believed that the other propositions, and the assignments of error on which they are predicated, should each be overruled. Upon the issue of title the appellee introduced a deed to her from the Farmers’ State Bank of Big Sandy conveying “all the right, title, and interest” of the bank to the land in suit. The bank was 'the agreed common source of title. A deed was then introduced from the Farmers’ State Bank of Big Sandy to Jim Henderson, the defendant, showing on its face a conveyance of the land in consideration of $480 evidenced by his note and a vendor’s lien expressly retained to secure its payment. The note was then introduced, with proof of its acquisition by appellee for a valuable consideration from the then legal owner and holder of the same, and that it was due and unpaid by Jim Henderson, the maker. [2-4] There does not appear in the record any denial on. the part of Jim Henderson that he executed the note, nor that he had not paid the same. And the legal effect attaching to such evidence is to authorize a judgment in favor of the appellee for a recovery of the land. For the Farmers’ State Bank of Big Sandy was the owner of the superior legal title to the land, in virtue of having expressly retained the vendor’s lien to secure payment of the purchase-money note, until the money was paid. Hamblen v. Folts, 70 Tex. 132, 7 S. W. 834; Howard v. Davis, 6 Tex. 174; Dunlap v. Wright, 11 Tex. 600, 62 Am. Dec. 506. And the Farmers’ State Bank of Big Sandy could convey such title to appellee. Ellis v. Hannay, 64 S. W. 684; White v. Cole, 87 Tex. 500, 29 S. W. 759. And the state of her title would then entirely depend upon the further question of whether or not in the evidence it conclusively appears that Jim Henderson, before the date of the conveyance of the bank’s superior title to appellee, had paid off and discharged the vendor’s lien note to T. H. Glezen, or that at the time of the payment of the money to the attorney of T. H. Glezen there was an agreement either in point of fact or in legal effect on the part of the appellee and the appellant of a release or waiver of the lien on the land. For it would be legally correct, as contended by appellant, that, if the purchase-money note had been paid by appellant, and the lien released by deed, or appellee had agreed to the release by deed, the superior title of the original vendor was thereby vested in appellant, and the deed subsequently made by the original vendor conveyed no title to appellee such as to give the right to maintain trespass to try title. But there is involved the judgment of the court that such facts did not exist, and there is evidence, we think, to support such findings of fact. The evidence is undisputed that it was the appellee’s money, inherited by her from her father’s estate, that was paid over to the attorney, and that she in person paid it over to the attorney. Jim Henderson, under the admitted proof, did not have the money with which to pay the note, and did not himself make payment of the note. The appellee, according to her testimony, which is undenied, .paid over her money to the attorney for the sole purpose of taking over the purchase-money note, and there is no evidence to show or have the ef- *344 feet of showing an agreement on her part to release or waive the lien on the land. And, further, there is sufficient evidence to support a finding of fact, as made by the court, that the appellant induced the belief, and by his conduct encouraged the writing and recording of the release deed, by false and fraudulent representation that he himself was paying off the note, and that it was his money that was being used to discharge the note and interest. But for the conduct and representations the release would not, it appears, have been executed and delivered to appellant. A release deed or waiver of a vendor’s lien procured by fraud or fraudulent representations will not discharge such lien. Thompson v. Elmore (Ky.) 18 S. W. 235. And the lien not being in fact released, and the release deed, being obtained by fraudulent representations, not legally operating, as between all the parties, to release the vendor’s lien, the vendor’s lien is left to stand with its attendant fight of lien in the holder of the purchase-money note. [5-7] Upon the part of the appellant, however, it is further insisted that relief should be denied appellee in a suit of trespass to try title, in yirtue of the agreement of purchase and sale of the land made between appellee and appellant. In this respect there is evidence to show that Jim Henderson was pressed by the attorney of- Mr. Glezen for payment of the note, and, being unable to pay off the note, agreed with Callie Hawley, the appellee, as follows: Callie Hawley was to buy or pay off the note and pay Jim Henderson $100 cash, and Jim Henderson wás then to deed the land to Callie Hawley as her separate property. Callie Hawley at the time of the agreement paid Jim Henderson $25 of the $100. Callie Hawley paid the full amount of the note over to the attorney, and, as she testifies: “The note was turned over to me the same day I paid the money; it was turned over to me by Jim Henderson himself at my home after we returned from Gilmer. Jim got the note from Mr. Glezen.” She further testified: “I paid the money before I got the note because I was buying the note. I got the note the same day I paid the money. I had bought the.note and I wanted to get it.” The appellant did not deny the evidence quoted above. And the evidence further shows that appellant did not make a conveyance to appellee of the land. The evidence does not place the appellee in the position of a mere volunteer paying off the indebtedness of the appellant, and neither does it show her to be a mere lender of the money to pay the note. The evidence shows rather an agreement on the part of appellee to buy the land from the appellant and have the vendor’s lien note be a part of the purchase price.' She was not to have a deed from Jim Henderson until after she had paid him $100 and had bought or paid Glezen for the note. And the further testimony is consistent with the fact, as involved in the court’s judgment, that appellee was to acquire the vendor’s lien note with the understanding that she was to succeed to and hold the vendor’s lien until a conveyance was made. Jim Henderson himself delivered the note over to appellee the same day of payment by appellee, having obtained same from Mr. Glezen. Appellee’s testimony shows that it was her purpose and intention to buy the purchase-money note, and not to cancel the lien, and Jim Henderson’s acts in respect to the note would strengthen the conclusion that there was not to be a cancellation or release of the lien until such subsequent time when the deed should be executed and delivered by him to appellee. An agreement is inferable that in the interim appellee was to be and was the owner and holder of the lien. But if an express agreement did not exist in that respect, still, on the facts, the doctrine of equitable assignment or subrogation applies, and the lien would not, as between the parties, be discharged so as to make ineffective the deed from the original vendor, the Farmers’ State Bank of Big Sandy. 25 R. C. L. p. 1351; 37 Cyc. p. 476; Mustain v. Stokes, 90 Tex. 358, 38 S. W. 758; Roy v. Clarke, 75 Tex. 28, 12 S. W. 845. [8] Appellant assigns as error the rendition of court .costs against the sureties on the replevin bond. This is a matter for the sureties to complain of, and they do not appeal and complain. Therefore the assignment is overruled. Concluding that the judgment in favor of appellee is a meritorious one, and without reversible error appearing, the same is affirmed. Footnotes [1] ©n^Eor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes