265 S.W. 1070 | Tex. App. | 1924
In January, 1924, the appellant sued the appellees J. B. Bellamy and wife on a note to recover the sum of $600, together with interest and attorney's fees, and to foreclose a lien on 82 acres of land. The facts pleaded, and which are conceded to be true, are substantially as follows: On August 20, 1912, Bellamy purchased the 82 acres of land from one P. L. Nolen, giving a note payable to Nolen for the sum of $1,500, due December 1, 1912. A vendor's lien was expressed in both the note and the deed of conveyance, and the latter was properly recorded. On May 4, 1916, the indebtedness was renewed by Bellamy, and the lien extended in accordance with the requirements of the statute then in force; but for some reason no maturity date was mentioned in the renewal note. On November 29, 1920, more than four years after that renewal, Bellamy again renewed the indebtedness by giving a note for the sum of $600, payable to appellant, who was then the owner and holder of the claim. This second note was secured by a deed of trust executed by Bellamy and wife. All the requirements of the law for the extension of vendor's liens were fully complied with. As a defense to this suit appellees pleaded the bankruptcy of Bellamy, and limitation. They allege that, at the time the note sued on was executed, the land was their homestead, and that the indebtedness against it was barred by statute of limitation. In the record before us those facts are admitted to be true. It is conceded by the appellant that, at the time the note sued on was executed, the former note was more than four years overdue, and that under the present statute no suit could then have been maintained for the collection of the debt, or for foreclosure of the lien.
The facts being undisputed, the trial court concluded that the second renewal of the lien, being on land used and occupied as a homestead, was invalid, and rendered a judgment against the appellant, denying a foreclosure of the lien. The record therefore presents only this question of law: Can a lien for the purchase money of homestead be revived after the debt has become barred by limitation? We are of the opinion that it can.
In Jackson v. Bradshaw et al.,
The mere fact that a note is not enforceable through the courts because of the bar of limitation does not extinguish the debt itself. It remains a moral obligation, and furnishes a valid consideration for a new promise to pay. Hoya v. Self (Tex.Com.App.) 245 S.W. 424. The Constitution does not protect the homestead against an incumbrance for the purchase money.
In this case no intervening rights of third parties are involved, and no personal judgment is sought, because of the admitted bankruptcy of Bellamy The judgment of the trial court will therefore be reversed, and judgment foreclosing the lien on the land involved in this suit will be here rendered in favor of the appellant.