No. 783. | Tex. | Apr 10, 1899
W.P. Ellison is the common source from whom all of the parties to this controversy claim title to the land in suit. On March 1, 1893, Ellison sold and conveyed the land to R.R. Spaugh, and in the deed recited that a part of the purchase money was secured by two notes, one for $200 and the other for $165, for which a vendor's lien was retained in the face of the deed. On the 17th day of February, 1894, Spaugh conveyed the land to Annie E. Reynolds for a consideration of $635 cash, recited to have been paid out of her separate funds, subject to the two notes given by Spaugh to Ellison, then the property of Waters, making $1000 consideration. A vendor's lien was reserved in the deed to secure the payment of the two notes. The deed stated that the property was conveyed as the separate property of Mrs. Reynolds.
On March 18, 1895, Annie E. Reynolds, joined by her husband, W.H. Reynolds, executed and delivered to H.M. Skelton a deed of trust upon the land to secure three notes executed by W.H. Reynolds, payable to T.A. Williamson, amounting in the aggregate to the sum of $750. The deed of trust was duly recorded about the time that it was executed.
Will M. Waters became the owner of the two notes from Spaugh to Ellison, given for the purchase money of the land sued for, and on the 5th day of July, 1894, Waters executed a release to W.H. Reynolds of the lien of those notes upon the land in controversy, except for the sum of $100, reciting that the balance of the two notes had been paid, and for the $100 unpaid, Waters took from W.H. Reynolds a note to become due on the 1st day of March, 1897. This note bore 10 per cent interest per annum, payable semi-annually, and contained a stipulation that if any installment of interest remained unpaid, the note could be declared due at the option of the holder. Waters transferred the note to T.W. Vardell without recourse, and four installments of interest being due and unpaid, Vardell instituted suit in the District Court of Dallas County upon the said note on September 23, 1895, against W.H. *583 Reynolds, seeking a foreclosure of the vendor's lien upon the land. Neither Mrs. Annie E. Reynolds nor Mrs. M.A. Williamson was made party to this suit. On March 8, 1897, judgment was entered in the District Court against W.H. Reynolds for the amount of the note and interest, foreclosing the vendor's lien upon the land, and subsequently, under an order of sale, the land was sold to satisfy that judgment and was bid in by J.T. Conner, to whom the sheriff made a deed in due form.
On March 2, 1897, the notes given by Annie E. Reynolds and W.H. Reynolds to T.A. Williamson being all due and unpaid, the trustee, H.M. Skelton, by virtue of the deed of trust made to him for that purpose, sold the land in accordance with the terms of the deed of trust and it was bid in by Mrs. M.A. Williamson, paid for with her separate funds, and deeded to her by Skelton as her separate property.
T.A. Williamson, with his wife, instituted this suit against J.T. Conner to recover the land, and the cause being submitted to the judge without a jury, a judgment was rendered in favor of the defendants, which judgment was affirmed by the Court of Civil Appeals.
Under the evidence, the title to the land in question was in Mrs. Annie E. Reynolds at the time Vardell instituted his suit against W.H. Reynolds to foreclose the vendor's lien upon it. Neither Mrs. Reynolds nor her vendee, Mrs. Williamson, was made a party to that suit, and the judgment foreclosing the lien did not in any way affect their rights. Whether W.H. Reynolds acquired any right in the land by the payment of a part of the purchase money originally due to Ellison does not arise upon the facts proved, and is therefore not decided. The land was subject to the lien of the $100, whether the title was wholly in Mrs. Reynolds or partly in her and partly in W.H. Reynolds. If Reynolds acquired any interest in the land, it may be that the sale passed that right to the purchaser, but no such claim has been set up.
The question decided in Ufford v. Wells,
If it were admitted that the payment of a part of the purchase money by W.H. Reynolds was made with his separate funds or with funds belonging to the community, and that he acquired an interest in the land to the extent of that payment, still Mrs. Reynolds owned near two-thirds of the land in her own right, and plaintiff, having acquired that interest, was entitled to recover to that extent. The trial court erred in entering judgment for defendant. The judgments of the District Court and Court of Civil Appeals are reversed and the cause is remanded.
Reversed and remanded. *584