L. C. Dеnman and L. C. Denman Company have appealed from a judgment rendered against them in favor of the Standard Savings & Loan Association for the sum of $1,989,98. with fоreclosure of vendor’s lien on certain real estate situated in the town of Jacksboro. The suit was instituted upon a promissory note dated Novеmber 28, 1902, due 106 months after date, and providing for interest and attorney’s fees. The note was executed by A. J. Birdsong in favor of the plaintiff, Standard Savings & Loan Assoсiation, and at the time of its execution Birdsong also executed a deed of trust upon the property mentioned above to secure payment of the note.
On July 12, 1906, Birdsong sold the property to L. C. Denman for the consideration of $2,500, $285.45 of which was paid in cash, and the balance of said purchase price was the assumption by Denman to pay $2,214.55, the amount then due by Birdsong upon the note mentioned. The contract of assumption was exprеssed in the deed from Birdsong to Denman. On July 5,1909, L. C. Denman soid the property to L. C. Denman Company for the consideration of $8,500, $6,000 of which was paid in cash, and the bаlance of the consideration, to wit, $2,500, consisted in the assumption by L. C. Denman Company to pay the note so given by Birdsong. That assumption was also exprеssed in the deed to L. C. Denman Company. In neither the deed to L. C. Denman nor the deed to L. C. Denman Company was there any express reservation of a vendor’s lien nor was there any language to show that such lien was waived by the plaintiff.
Birdsong was also made party defendant, and a foreclosure of the lien was decreed against him also, but upon his plea of limitation no personal judgment was rendered against him, and no complaint is made of the judgment as to him; but L. C. Denman and L. C. Denman Company, appellants in this ease, have assigned error to the action of the trial court in overruling their plea of the statute of four-year limitation. The suit was instituted on June 29, 1916, four years, nine *1110 months, and one day after the date the note sued on stipulates .that it would maturе.
“Th'o owners of all notes secured by deeds of trust or other liens and the оwners of all vendors’ lien notes reserved in deeds of convejmnce which were executed subsequent to July 14, 1905, shall have four years after this act takеs effect within which they may obtain such recorded extension as herein provided for, or bring suit to enforce the liens securing them if same are valid obligations and not already barred by the four years statutes of limitation when this act takes effect, and if such debt is not extended of record, or suit is not brought within such four years or four years after they mature, they shall be forever barred from the right to extend such debt of record, or bring suit to enforce the lien securing the same.”
When those amendments took effect four years had not elapsed since the maturity of the note. But it is quite clear that the demand for a personal judgment against Birdsong in this case was barred, as the note was four years past due when the suit was instituted, and he had never executed any contrаct to extend the time of its payment. The suit was also barred as against Denman and the Denman Company, unless it can be said that the provision of article 5695 quoted prevents that result. Those defendants insist that as they did not execute any new note, but only assumed the payment of the note previously given by Birdsоng, they stand in his shoes, and have the right to invoke the statute of limitation to the same extent as he can invoke it. ■ Among others the following authorities are cited to support that contention: Newman v. San Antonio Trac. Co., 155 S. W. 6SS; Pickett v. Jackson,
“It is wеll settled that the usury in the original contract, if any, cannot be pleaded by a subsequent purchaser of the security, who, as part of the consideration for the purchase, promised absolutely to pay the full amount of the usurious debt, because, as it has been said, his liability arises from his assumption—a new contract—and not upon the original usurious one, and he is supposed to have received a consideration, in the value of the property received by him, for all that he promises to pay. See Association v. Sellars [19 Tex. Civ. App. 201 ]46 S. W. 370 , and authorities there cited; Association v. Price [18 Tex. Civ. App. 370 ]46 S. W. 92 ; Vaughn v. Association,36 S. W. 1013 .”
And in Spann v. Cochran,
“Without any contract or agreement, by operation of law this lien springs at once out of the contract of purchase, and exists and survives until waived or еxtinguished by payment, as between the original parties to the notes, wholly independent of any agreement, verbal or written.”
To the same effect are Cecil v. Henry,
As all of appellants’ assignments of error *1111 present tlie same question discussed above, they are overruled, and the judgment of the trial court against appellants is affirmed. The further judgment as between plaintiff and defendant Birdsong, of which- no complaint is made, is undisturbed.
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