Holland v. W. C. Belcher Land Mortgage Co.Holland v. W. C. Belcher Land Mortgage Co.
Tes.)
vendee,
ing
gages.”
tfc.c-.reof,
chattels,
purchasers,
against
pealed.
named
utes
ed,
Fields,
“All
Article
such sale to be
however,
judgment
shall,
seizure and sale
judgment
1914, provides
reservation
be void
registered
or S. M.
defendants,
shall be held
an execution
when
5654,
unless such
defendants
security
that no
so
as
as to creditors
possession
Vernon’s
HOLLAND C.
W. Fields.
rendered.
of the
applied
is in favor
as
required
recovery
and order
reservations be
thereof,
O.
follows:
title
be
plaintiffs
toward
Sayles’
B.
is delivered
chattel
*1
y.
Rodgers,
of chattel
should be
and bona fide
or
of said last-
the
so much
Civil Stat-
property in
proceeds gage,
sale
adjudg-
in writ-
BELCHER
M. M.
money
mort-
(248 i.W.)
for
ap-
case was
upon
no
to be the settled law of this state.
ment should be
manded for another
dered.
should be
Reversed and remanded.
HOLLAND v.
actual
LAND MORTGAGE CO.
present
As there
it is not made
in such cases as the
MORTGAGE CO.
fully developed,
knowledge
reversed,
purchasers.
ease,
was no such
reversed and the
but in view of the fact
apparent
judgment
of an unrecorded mort-
trial,
BELCHER
Such
(No. 10079.)*
we think the
present
proof
to us that
holding
appealed
it is so
case,
cause re
LAND
made in
seems
judg
from
or
(Court
Appeals
of Civil
Ft.
Texas.
Worth.
Rehearing
Dec.
1922. On Motion for
provided,
is
5655 it
article
And
20, 1923.)
Jan.
chattels,
every
mortgage
remain
which
Mortgages
mortgagor,
<&wkey;280(3)—Verbalpromise
be void 1.
possession
shall
is
assume
valid.
subsequent purchasers and mort-
A
good
verbal
faith, unless
to assume
gagees
or lienholders
equity,
valid and
enforceable in
copy thereof,
same,
shall be
true
or
only by
grantor
the holder of the
county
office
filed
forthwith
mortgage,
parol agreement
but such
be
must
property
county
shall
clerk
shown
clear evidence.
pro-
it
And
article
be situated.
Mortgages <&wkey;280(3)—Agreement
2.
present-
of as-
copy
be
of such
vided,
sumption may
incorporated
in deed
be
or
origi-
filing,
instead
to the clerk
ed
conveyance.
outside
orig-
nal,
unless the
not file the same
he shall
agreement
assumption may
An
be in-
subscribing
by two
witnessed
inal
corporated
conveyance,
deed, may
it
be outside the
proven
acknowledged
for rec-
witnesses
ord and
wholly
parol, may
it
rest
certified,
required in
case
oth-
implied.
purpose
re-
er instruments
<&wkey;>42(l)—Deed
3. Covenants
not to
corded.
special warranty against mortgage.
tain a
stated,
is shown
before
[1] As
grantors
lawfully
Deed in which
covenanted
acknowledged or wit
neither
delivery
possess-
seized and
copy
law,
required
nessed
ed of absolute estate in
that it
original;
might
in lieu
be filed
thereof
and clear from all
free
incumbrances ex-
filed,
original
and that a
was never
cept
mortgage,
“they
a named
copy
Under
filed.
thereof
same,
warrant forever defend the title” to the
copy
filing
was not
circumstances
held not to
warrant
title
the nam-
of the existence
the ed debt.
notice
constructive
and,
O. B.
if it
shown
mortgage,
Rodgers
Mortgages <&wkey;292(5)—In
action on note se-
purchased
the automobile without
grantor
cured
subsequent grantee
neither
nor
of such mort
of the existence
actual notice
necessary parties.
gage,
of the defend
favor
pay-
In action
a note and
also
affirmed, and
should
should be
ants
ment of which was
to have been as-
Mm,
shown that neither
defendant on
be affirmed
sumed
transfer
land to
prior grantor
knowledge
nor the
neither the
mort
had actual
Fields
payee
grantee
sary party;
or the
neces-
Rodg
they purchased
gage
at thé time
being on
the'action
defendant’s
ers.
promise
by
amount of the notes
secured
however,
proof,
that O.
was no
[2] There
only personal judgment
Fields;
Rodgers, M.
or S. M. Fields
M.
B.
sought.
notice of the existence
had no actual
mortgage
<&wkey;44(4),—Parolobliga-
statute of
5. Frauds*
pur
the time of their several
grantee
tion of
violation
be
incumbrance not in
In Bowen
Lan
chases of
automobile.
agreements
as to
Works,
sing Wagon
385, 43 S.
year.
within one
College
Armstrong
872, Oak Cliff
obligation
of
in
Vickers v.
pay an incumbrance
thereon
is not
App.
Carnahan,
4 Tex. Civ.
23 S. W.
frauds,
section 5
violation of
statute of
339, it
held that
the burden to
show
inhibiting an action on an
purchasers
mortgaged property
year.
within
not to be
eases
see same
in all
@s>Kor
KEY-NUMBER
and Indexes
jurisdiction
for want of
* writ of error dismissed
March
*2
248 SOUTHWESTERN
twenty-five
ceipt
dollars,
($2,500.00)
hundred
the re-
<&wkey;>l29(2)
Frauds,
—Rule
hereby
give,
acknowledged,
which is
do
with-
to he
side
contract
grant,
party
convey
bargain,
sell
said
and
unto the
year
stated.
in one
is
part,
heirs,
and as-
the second
his
per-
to be
is
side of
contract
Where one
signs,
following
all of the
described tract of real
year
performed, the
is
con-
within a
and
formed
estate,
Bryan county, Okl.,
situated in
to wit.
statute, though
oth-
the
tract is
within
the
* * * To have and to
the
the
hold
same unto
per-
incapable of
er
be in
nature
side
its
party
part,
said
and
second
heirs
formance.
assigns, together
singular
all
with
and
ten-
the
Rehearing.
for
On Motion
ements,
appurtenances
hereditaments and
there-
unto', belonging,
simple
in fee
forever.
sufficiently
Mortgages <&wkey;292(6)—Petition
parties
part
“And
said
for
the
first
pay
alleged
promise to
note.
defendant’s
heirs,
themselves and their
and ad-
executors
in
of
note and
action on
hereby
ministrators, do
covenant with
the
part
defendant,
which was
party
delivery
of the second
that at the
price
purchase
land,
and
the
presents they
lawfully
these
and
are
seized
petition
pay
indebtedness,
promised
to
the
possessed of an absolute
estate
and indefeasible
defendant,
allege
express
to
an
simple
of inheritance in fee
and
to the said
pay
mortgagor,
amount
the
to
the
to
real
and that the same is
and clear
estate
free
mortgage
the
holder and owner of
note
the
to
except
incumbrances whatsoever save and
all
promise.
at the
the
and-note
date
mortgages
Company
to the Southern Trust
for
$1,700.00
and $170.00 and that
war-
Court, Tarrant
Appeal
District
from
rant
against
forever defend
title to
the
the
County.
persons
whatsoever.”
Mortgage
Land
Belcher
the W. C.
Action
It cannot
said that
-the deed the ven-
against
Company
Holland.
M. I.
specifically
dee
notes,
assumed the
appeals.
judgment
defendant
for
mortgages,
secured
nor
is
Affirmed.
by appellee.
so contended
The reliance is
appellant.
Worth,
Wright,
for
A.
Fort
placed
parol assumption alleged
on the
appellee.
Worth,
Fort
given.
O. S.
have been
Howard
this
testified
matter as follows:
BUCH,
filed
This Is a suit
J.
“I am asked to state what occurred at the
appellee,
appellant by
and
holder
time I sold this
land
tract of
Holland.
Mr.
mortgage
promissory
note
owner of
At
time I
sold this land to Mr.
I
by George
wife to-
sold 630
acres of
and the total consid-
eration,
think,
Company.
$14,100,
I
and I
The
think the
Trust
Southern
acre,
consideration on this
as I
26, 1916,
$27
an
mortgage
June
were executed
figured
remember. We
the entire
given
secure
and to '
to,
paid
amount that the land
came
alleged that
It was
interest.
of
George
mortgages
the amount over and
cash.
above
subsequently sold
wife
Howard and
given,
upon
“Q.
regard
What
was he
do in
to the mort-
deal,
in said
I.
to M.
a
gage?
mortgages.
A.
was to
He
consideration,
Holland assumed
object
“Mr. Conner: We
because
indebtedness;
promised
this
a conclusion that
he was
the mort-
gages.
subsequently,
paying
“The Court: What did he
about
assigned
transferred
pay,
not whether' he was to
through
here;
and without
mistake
by you and him
what was said
with reference
Trust
ex-
Southern
sideration
any particular mortgage
one? A.
lien;
release of this
ecuted a
My understanding was—
involved, being
sold the land
later Holland
your
understanding;
“The Court: Not
Okl.,
county,
Bryan
to one
100 acres
what was said and done.
paid
Q. Repeat,
you can,
consideration
appears
the entire
“Mr.
as near
who
Arnold:
the conversation
had.
said Holland.
therefor
conversation,
The
“The Court:
plaintiff
suit
at
the defendant
time of the
on,
derstanding;
pass
court
for the
resided in
coum
below
Tarrant
understanding.
whether
A.
As
there
sought
judgment
ty,
Plaintiff
remember,
agreed
assume—
alleged parol assump-
defendant
tion
mortgages
on the land.
the incumbrance
defendant of
Anything
“The
further?
Court:
made at
the time
pay all mort-
“Mr.
He
Arnold:
land, including
Holland from Howard and
gages
wife.
oh
way
court,
particular
was tried before
tract? A. That
The
cause
plaintiff
amount
(cid:127)
August,
I was con-
“On the 29th
for,
appealed.
sued
Company..
At
Southern
nected with the
from Howard and wife
deed
to Hol-
prior
to that
Southern
Com-
as follows:
land is
pany
mortgage.
1917,
the amount of
had never been
“Witnesseth,
parties
August,
At or
to the 29th of
had sold
for and
consideration of
sum
Southern Trust
in all
Indexes
see same
and KEY-NUMBER
eases
©soFor
Tex.)
C. BELCHER
HOLLAND W.
LAND
MORTGAGE CO.
s.w.)
(248
' my
conveyed
understanding
tlie
here-
tlie
he would
the mort-
—that
gage against
evidence to
W. C.
tofore introduced in
land.
Company.
“Q.
any
Do
hearing
recollection of
assignment
in blank
him
there was
mortgage
make
absolute
as to that?
*3
way
sold;
you my
I
understanding
it
that
A.
when was
told
of the matter
sign
always sell;
pay
was
mortgages
we
the note
we
sell
that he
towas
all the
on the
assignment properly
I
blank.
have land.
in
experience
good
Q.
you
in the land mort-
“The
had a
deal of
Court:
Did
hear him make that
gage
statement,
in the
of Oklahoma.
it,
business
state
that he would do
not
derstanding;
T
know
you
the time that Mr.
say
“I
that
specifically;
did
hear him
pay
in
$1,700
note and
mortgage’?
Holland assumed the
that
A. I don’t
mortgage.
question
I know at
paid
say
just
interest on
he
that I
him
heard
it in
those
words;
the
(fad
time,
this settle-
ago,
when made
the transaction was some time
some
my
looked at
ment. I think there was—I
it;
best I can state is
remembrance
had;
agreed
on
whole
was a credit
mortgages
books I
there
on the
$9,050
amount;
mortgages
piece
words,
in
conversation,
there
land. As to the exact
that would
my memory
great
tract of
on the entire
tax
my
deal. It is not
re-
call
what we
of land is
described
membrance of the transaction that he
tract,
buy
subject
and there was
Emma
Gilmore
to the debt.”
mortgage,
him credits
and I allowed
apply
price
on a com-
of $31.17
Hollands testified:
July,
due the 1st of
note that was
mission
bought
“At
I
time
Gilmore
Emma
coupon
apply
the interest
$42.50
land from Mr. Howard with the
mort-
it,
paid
in-
notes, and,
terest
I remember
he
as
gage against it, which
introduced
follow-
were due the
and all items that
jis
evidence,
to whether I assumed to
purchased
July;
latter
ing
land in the
he
that
note and
I will
May;'
thought
paid
the interest cou-
I
no,
having any
state
conversation. I
I don’t remember of
such
pur-
sure,
pons;
to be
the book
I
look at
didn’t
bought
the land for the
delinquent.
nothing
there
I am
but
I was
certain
pose
trading
it.
charge
of the business
thereafter
“I am
done,
asked to state what was said and
September,
Company until
the Southern
remember,
far
as I
with reference to the
paid
never
to
Mr. Holland
1919.
mortgage
buying
paid
the consideration to be
Trust Com-
the Southern
disposition
to made of
*4
must
shown
clear evidence.
on
be
Jones
particular conversation
I do not
142,
740a;
Mortgages,
Ashford,
2, p.
v.
vol.
Keller
§
told,
surprised
you
at
were
me that
in which
610,
Sup.
494,
133 U. S.
10
Ct.
33
man,
young
land,
taking
a
this
L. Ed. 667.
par-
that
$9,050. I don’t remember
Dobbin,
299,
In Beitel v.
44
writ of
S. W.
conversation;
that
I remember
ticular
denied, the
Antonio
you.”
error
Appeals,
says:
San
Court of Civil
met
had ever
time that I
first
eNeill,
through
speaking
Mr. Justic
testi-
witness
a
O. S.
fied:
purchase subject
“When
makes a
a
promises,
as a
of
con
Mr. Howard
that went
“I
want
sideration,
described
and retains
lands
to the
of
the sale
to consummate
purchase price,
the amount due on it
of
out
office of
petition Mr. Holland
of
in the
by
Okh,
mortgagee, upon
Durant,
he
liable
in
action
Eerguson
&
Hatchett
that time the
principle
person
prom
awhen
makes a
to me that he
stated
person,
ise to
another
benefit
a third
payment
had assumed
person may
such third
maintain an action
question.”
thereon,
promise, though verbal,
and such
not within
the statute
'frauds. Association
cross-examination, hie testified:
Upon
Attebery (Tex.
571;
App.)
v.
Civ.
42 S. W.
or assumed
Jones, Mortg.
750,
never
751;
Gaines,
Buchanan,
“This defendant
§§
Morris v.
82
writing.
anything
He
by
255,
pay
stated
sumed
538;
Tex.
27
17
that
S. W.
Monroe v.
things
had
he
among
241;
Riviere,
640;
Tex.
Muller v.
incumbrance;
great
deal of
Pickett v. Jackson
42 W.
S.
up
amounted
made
were
held,
judgment may
Ponce v.
within the
year,
ance.
Dec.
to
ard
executing
hibits
agreement
ation
in violation
thereof.”
frauds
judgment,
cured
effort to
suit.
necessary party
signee
W. 922.
tee. or
107;
Delano
inson v.
ranty
been followed
cisions. Morris Hesse
(Tex.
Texas
unmistakably
rule that
show an
cumbrance,
S. W.
All
McDonnell,
[5,
[4] TVe do
Holland
688;
6] Nor do we
contract
and
Bone v.
grantor,
assignments
Civ.
Miller
an action
in the deed. Johnson
710;
space
of the notes and
*5
Supreme Court,
Holland
(Rev.
the Southern
(Tex.
writ denied.
McWhorter,
to
assumption by
foreclose
Clymer (Tex.
Castleman v.
its nature
App.)
statute, although
affirmed.
conveyance
even as
Manton v.
of section
performed,
Civ.
merely an action on Holland’s
Stat.
Holland was in
not think either
conveyance.
Smith
by
and
is to
Marshall,
parol promise
sought
his
Roberts,
to
the amount
v.
to
is not to
one
207 S.
our
evidence
App.)
positively
1911, 39G5),
are overruled and
year
(Tex.
Trust
courts
incapable
or
the encumbrance was
Civ.
City
performed1
5 of the
suit.
189
and
Sherry,
brought “upon
but nevertheless
the contract
18 Tex.
of the contract
controversy.
(Tex.
§
inwas imputed Lynch, and J. B. the last-named in deference feel but we finding court, acting reason under and declara three trial Valley testimony of Pecos Howard and we tion in trust- the name Company. & Oil there was total indebt- Alfalfa Land conclude must edness of January, 1921, $9,050. On 15th 'the Valley rehearing Alfalfa & Oil is overruled. The motion Pecos Indexes other oases see KEY-NUMBER in <®=»For notes pany. mortgages. attorneys and figuring part attended to the Com- from the Southern Trust transfer “The me, I and was not in there but pany very day, day little that the transaction involved this suft note and the exactly was made. I don’t remember what the blank; words, assignment in in other was the name signed price was, something of this land $22 party it whom per something that; $25 like I don’t re- acre— us that to leave custom was—it price was; member what the exact it could, has been they they blank, it to sell fill wished long Ferguson, time. Messrs. Hatchett & they party to whom sold name attorneys, represented me and * * also Mr. * How- it. ard, they up, drew of this all business M. I. Holland was con- with Mr. “This trade up; fixed all of this business I was in and him in the office Messrs. summated my attorneys out of I left there. it to fix Durant, Judge Eerguson Okl.; & Hatchett up, attorney. and also to Mr. Howard’s I par.t Ferguson and Mr. Holland were there represented believe he both of us—that is the day. there Whether he was way represented I understood it—that he I don’t I know. whether don’t remember us, so he went and fixed this ahead busi- in blank and the check left it with up; ness I in and out of there. Eerguson Judge Mr. Holland time filled out. Mr. “Q. you any specific Do remember conversa- Ferguson, Arnold Mr. were Mr. there. tion at that time with reference whether was there considerable you note, were of this day. Whether remained there merely taking subject to the note? ** * afternoon, I don’t entire remember. Well, merely subject taking A. to it. was there at the Mr. Holland time the trade “Q. you any Do remember conversation with made, closing but it—of the point? No; to that reference I A. don’t re- say. details—I couldn’t You see we made the any member conversation.” days up, trade several before we closed it deed, etc. On cross-examination lie said: and, “I the deed to Mr. delivered remember, paid I Holland did tract the deed which I delivered to Mr. “As to whether I ever I will not this Emma include Gilmore that I have state no check paid to show that I too, it, impression and several other tracts but there Ibut was under the when I traded deed, it, my I remember for each allot- this land paid. father that this had been to. portion paid ment or of allotment that was trans- I never it. I no have check to show where distinctly paid “Q. ferred to Mr. I Holland. remember I discussing you of the Southern with Mr. 'Holland the due Do remembrance of ever having paid Well, on the Emma Gil- that? A. I don’t remember. together tract, “Q. more with all of you You couldn’t state now that ever tracts; No; we discussed them. it? A. I don’t remember. “Q. you you Can swear about this is a “It fact that [Mr. Arnold] and Mr. promised you Ferguson Ferguson's office, consideration there Mr. you figuring he would off the day, note? A. did the That was (Tes. SOUTHWESTERN promise any, myself. assumption, yet in defer- you don’t to Mr. talked figuring you finding item ence to the evident the trial court remember about the three you on, made, pieces remember but I and so such a because figuring. greater did the finally, swore, Howard and Arnold both you having there told' “I remember do not made, it was it was we must conclude that taking on a Eergüson’s that was office in Mr. big made. A to assume and verbal assuming $9,050. I do load, that was a equity, enforced valid and you having that. [Mr. told Arnold! remember only by grantor, didn’t; but say Xdid whether Xwouldn’t parol agree- -ago. holder of the long time has been you ment, first time “I that was believe you conveyance estate, met. I taking had ever that to real deed good friends. and Bud told me
Notes
notes list of has whole to 568. It even in the absence had assumed purchaser he pay, that when the holds of notes payment purchase money list out of the the amount on due it, made, as I recall prior mortgage upon property conveyed, statement and that Messrs. Day, office of on Decoration will be he cured held to have assumed the.debt se Durant, Eerguson, Okl. by Hatchett & it.” Day said that 1917. He Decoration on made we closed on assumed he had agreement assumption may [2] An 25th, deeds. The deed incorporated deed; may outside oral state- These date. on delivered conveyance; may by wholly parol, him at the rest he made ments that the transac- time; implied, and is not within the stat specifically the note mention Cyc. p. 1344, He did notes; tion. ute of frauds. 27 19 pay- on; had assumed the he he sued 381, 152; p. Mortgages, R. L. Jones on § § notes—mortgages. As to wheth- those ment 148, p. 142; Poole, App. Van-Meter v. 130 Mo. the notes and had assumed he er 433, Bldg. Mitchell & Loan deed, get Association, 624, 49 S. W. this court. $9,- payment of he said he state urges Appellant warranty
[3] con land, this on this on 050 worth specifically bought. tained in the deed warranted the As I recall the acres 630 versation him awhile his brother something particular now, debt, like I asked title it was this father and ago; known his I had circumstances under such reliance could not years, number agreement prior parol a' be had to as him, had met that I was the mortgage debt. He cites sume the such au land, taking this commenting on his Page Contracts, 2197, p. § thorities ‘Yes,’ said, acres 630 agreement urges that where oral He big taking man, young and he awas assume contradicts a covenant burden mortgages general warranty, such oral my listed; recollection that is support excluded, and cites later than there date was not must be That “The Court: July? Rooney Koenig, 483, than the later 31st A. Not Minn. 80 83 W. 25th N. the of please.” 1917, May, honor Supreme Court Minnesota. written, and, the deed as not construe doWe special' by appellant, contains Howard and Holland were as claimed [1]While warranty the incumbrances men and uncertain indefinite somewhat exact general wording there is most nature of the verbal tioned. At even held the brance. tions. He notes apparently Minnesota, is ranty. agreed 845. In discusses the the contrary Minnesota the subsequent standing superior title, and the court Supreme Tex.) warranty admissible, instant case. various benefit of Johnson v. Court subsequently acquired title inured assume the of title. Some of us show 52 R. A. case holdings question under L. opinion the sale HOLLAND conclusions can be In that a deed Elmen, grantee. and other in different Chief very fully, Massachusetts, distinguished from acquired case the vendor 86 Am. St. v. TV.C. reached Justice But general states, the incum- and cites by parol our own jurisdic evidence BELCHER merely Gaines war Rep. hold out (248 3.W.) the note and and wife on vice tiff in tween such of time which it or about assigned by executed was dated ditional A. B. Richardson testified that he was the Howard and wife June LAND MORTGAGE CO. president release did not affect the response parol assumption by this case on findings, On Motion for purported May 25, and that the said August 29, August 29.1917, the trust mortgage- the Southern Trust of the Belcher Land appellant’s request we find that to release was executed here of the land July 3, company 1917. The Rehearing. 26, 1916, appellant at the when the South- company 1916. As be- binding the release appellee, and was him on for ad- owned plain- force