202 S.W. 752 | Tex. App. | 1918
The first assignment is as follows:
"The court erred in rendering judgment for the defendant Long foreclosing the notes mentioned in the judgment herein and holding that defendant was entitled to a foreclosure for vendor's lien upon the land in controversy."
It will be noted that the assignment challenges the correctness of the judgment only so far as it is in Long's favor for a *754 foreclosure of the vendor's lien retained to secure the payment of Will Nobles' notes to Mrs. Smith. It is clear it is not erroneous in that respect; for if Long was entitled to judgment for the amount of those notes (and it must be assumed that he was, in the absence, as is the case, of an assignment attacking the validity of the judgment in that respect), he plainly also was entitled to the foreclosure awarded to him.
The proposition under the assignment indicates that the Nobles construe it as an attack on the validity of the judgment in so far as it awards Long a recovery against Will Nobles of the amount of the latter's notes to Mrs. Smith. If we so construed the assignment we nevertheless would overrule it; for we do not agree that those notes were so "novated, merged and extinguished" in the transactions evidenced by the judgment, deeds, and notes canceled by the decree as to deprive Long of a right to recover on them. To operate as a novation extinguishing those notes the new contracts must have been valid, and the court expressly determined that they were not. 29 Cyc. 1130; Davis v. Wynne, 190 S.W. 510.
Mary Nobles insists that the judgment is erroneous in so far as it forecloses the vendor's lien on the 46 acres claimed by her. The contention is based on testimony showing that she furnished the $400 paid to Mrs. Smith at the time she conveyed the 160 acres to Will Nobles, and on the assumption that the testimony also showed that "all the parties" to the suit had agreed that the 46 acres "was to be her property." The testimony did not show the existence of such an agreement between Mary Nobles and Mrs. Smith, nor between Mary Nobles and Long. It did show, and the jury found, that there was such an agreement between Mary Nobles and her children, and the court determined by his judgment that as between them Mary Nobles was the owner of the 46 acres. Of course Mary Nobles and her children by an agreement among themselves could not deprive Mrs. Smith nor her assignees of a right to enforce the lien retained by her on the 160 acres she sold and conveyed to Will Nobles to secure the payment of the notes Will Nobles made to her.
There is no error in the judgment, and it is affirmed.