Cannon v. Bonner

Walker, J. In 1861 John T. Dechard purchased a tract of land in Anderson county from I. S. Taylor, giving at the same time three promissory notes for $833.33 each, due in one, two and three years, with William Y. Lacy and John Gf. Stuart as securities. Taylor executed and delivered a deed to Dechard for the land, and at the same time Dechard executed a mortgage to secure the purchase money; his wife, Harriet, not joining in the mortgage. In 1862 Taylor assigned these notes to R. M. Bonner, and in October, 1864, Mrs. Taylor, acting for herself and her husband, he being absent in the Confederate army, signed both their names as guarantors of the notes to Bonner. John T. Dechard died in 1866, and the appellant, James H. Cannon, administered on his estate. The notes were presented to the administrator, allowed, and the allowance approved by the probate court. In October, 1866, Bonner brought suit against the securities and guarantors upon the note. Judgment went against the defendants. On the second of March, 1868, Bonner, McDaniel and Jackson sued Cannon, the administrator of Dechard, Lacy, Stuart and the Taylors. Mrs. Harriet M. Dechard intervened and claimed her homestead rights. [491] The principle is familiar that where the vendor of land takes personal security from the vendee for the purchase money he is held to have abandoned his vendor’s lien. This property was not then encumbered by the vendor’s lien, and the mortgage to secure the purchase money, not being signed by Mrs. Dechard, stands upon no higher ground against her than a mortgage given to secure any other debt. It is not necessary to discuss the errors assigned in their order. The first error assigned is probably well taken; at the time this suit was brought the plaintiff should have gone into the probate court in order to enforce his lien. (Giddings v. Crosby, 24 Texas, 295.) We pass over the second assignment of error. As to the third, we think the exception comes too late. The presumptions are in favor of the action of the county court, and that that court had all the necessary proof before it of the genuineness and validity of the claim. We think the court erred in ruling out the records of the Probate Court of Anderson county, by the introduction of which it was sought to show that that court, having full jurisdiction to do so, had assigned to Mrs. Dechard a homestead of two hundred acres. The probate court had jurisdiction of this matter, and in no way is it shown to us that it had transcended its jurisdiction. Its judgment was not appealed from; and where the jurisdiction is plain and no appeal is taken, the judgment is final, and cannot be collaterally impeached. It is scarcely necessary to refer to authorities in support of this opinion; but Graham v. Vining, 1 Texas, 639; Danzey v. Sweeney, 7 Texas, 625; Crosby v. McWillie et al., 11 Texas, 94; Wright v. Henderson, 12 Texas, 43; and Robertson v. Paul, 16 Texas, 475, are all cases bearing in its support. [492] We are of opinion the judgment of the District Court should be reversed and the cause remanded, to be proceeded in, in accordance with this opinion. Reversed and remanded.