133 S.W. 738 | Tex. App. | 1911
It appears from the findings in the record that appellant sold and conveyed to appellee J. E. Kennard a tract of land, in consideration, among other things, of the execution and delivery to him by said Kennard of his four promissory notes — one for $325, payable January 1, 1908, and the others for $500 each, payable at later specified dates. The payment of the notes was secured by a vendor's lien expressly retained on the land by appellant. The note for $325 afterwards, for a valuable consideration paid to him, was assigned by appellant to appellee A. Kennard. The assignment was by an endorsement "without recourse" made on the back of the note by the former. Appellant did not in any manner undertake to pay or guarantee the payment of the note, nor did he agree that in the event of a foreclosure sale it should be entitled to priority of payment over the other notes, still held by him, out of the proceeds of such a sale. On these facts the trial court concluded as matter of law that the note held by said A. Kennard was entitled as against the notes held by appellant to priority of payment out of the proceeds of a sale of the land ordered to satisfy judgments rendered against said J. E. Kennard in favor, respectively, of appellant and said A. Kennard as the holders *518
of the notes. We do not agree that the law is as the trial court determined it to be; nor do we agree that the authorities cited by appellee support the conclusion reached by said court. While it has been held by the Court of Civil Appeals of the Fourth District that a note secured by a vendor's lien on land, while in the hands of an assignee of the vendor, is entitled to priority of payment over other notes of the same series still held by the vendor, in the event the proceeds of a sale of the land are not sufficient to pay all the notes (Douglas v. Blount, 22 Texas Civ. App. 493[
The judgment will be so reformed as to direct the application of the proceeds of the sale of the land to be applied to the payment pro rata of the notes held by appellant and the note held by appellee A. Kennard, in the event same should not be sufficient to pay same in full, and as so reformed the judgment will be affirmed.
Reformed and affirmed.
Writ of error refused. *520