Willis v. Gay, 48 Tex. 463

Willis v. Gay

48 Tex. 463 | Tex. | 1878

Roberts, Chief Justice.

There are forty-five grounds of error assigned in this case, presenting all the questions that arose upon the trial in the District Court. The record, contained in 214 pages, presents the case for adjudication, upon all of the matters involved in it, the same as it was presented in the court below. The effect of the appeal, under such circumstances, is simply to transfer the case from one court to the other for retrial upon all contested points, without any responsibility being assumed by counsel of selecting and presenting any particular questions of law or of fact for adjudication in this court. To present the views of the court upon each and all of the errors assigned separately, would require a voluminous opinion, disproportioned to the importance of the questions raised by most of them. The necessity is, therefore, devolved upon this court of selecting and present*469ing such questions as are deemed important to be considered, in determining whether or not the judgment should be reversed.

First, then, as to the correctness of the charge, which, upon the leading point in the case, was, in substance, that though taking a note in payment for the land, with sureties thereon, .raised a presumption of a waiver of the vendor’s lien, still that presumption might be rebutted by proof that the vendor relied upon the land as well as upon the security given for the payment of the purchase-money. This is in accordance with the decisions of this court. (Ellis v. Singletary, 45 Tex., 27; Faver v. Robinson, 46 Tex., 206.) The pleading and evidence were sufficient to sustain the verdict of the jury, in favor of the plaintiff below, under this charge.

The next question is,—Did Willis & Bro. have notice of this lien at the time their judgment was rendered? there being no doubt as to actual notice having been given to them on the day of sale, under their own execution, when they purchased the land.

The deed from Brooks to G. A. Matthews reads as follows, to wit: “Know all men by these presents, that we, Uri Brooks and Sarah Brooks, wife of said Uri, of the State and county aforesaid, for and in consideration of $2,700 secured to be paid to us by George A. Matthews, the receipt of which is hereby acknowledged, have granted,” &c. This deed was executed and recorded in 1859, long before the attachment and judgment in favor of Willis & Bro. against L. L. Matthews, to whom the land was sold by G. A. Matthews in 1865; and who, it is averred and proved, had personal notice of the claim of vendor’s lien given by Gay, administrator of Brooks’ estate, at the time of his said purchase in 1865.

It is well established, that if a fact is recited in a deed, through which a party claims title to land, he is held to have notice of that fact. Willis & Bro. claim title to the land under this deed from Brooks and wife to G. A. Matthews. And it being recorded would also give them notice. The *470recital in this deed, that the consideration was “ secured to be paid to us by George A. Matthews,” clearly conveyed the intelligence, to any one who might inspect it, that the money was not paid down for the land, and that it was secured by said Matthews, to be paid at some future time. Though this does not amount to an express contract retaining a lien upon land, for the want of appropriate terms, yet it is the recital of a fact which was well calculated to put' a subsequent purchaser upon inquiry, which, if followed up in the right direction, would, as shown by the proof, readily and certainly have led to full notice that the purchase-money had not been paid to Brooks, or to Gay, the administrator of the estate. That is sufficient to charge Willis & Bro. with notice of the lien. (Johnson v. Gwathmey, 4 Litt., (Ky.,) 317.)

Again, Willis & Bro. pleaded, in defense of the action on the note, in order to defeat the operation of the lien to their prejudice, that Jones, one of the sureties on the note from George A. Matthews to Brooks, had and owned, at and before the institution of this suit, allowed claims against Brooks’ estate to an amount larger than the debt sued on, by which it was extinguished, the estate of said Brooks being solvent. The evidence admitted to go before the jury failed to establish these facts. Gay, in giving his testimony, admitted that he had agreed to receive in payment any of such allowed claims, and was still willing to do so; and that Jones had paid several hundred dollars in that way, which amount was credited on the note. In order to establish the facts of this plea, Willis & Bro. offered the testimony of Dr. Irion, to the effect that he had heard said Jones say that he had bought up claims against the estate of said Brooks, deceased, to put as a credit on the note sued on; to the exclusion of which, by the court, they excepted, which appears in a bill of exceptions in the record. This was an effort to prove the admission of a fact, stated by a defendant in the suit, made in favor of Ms own interest, the tendency of which was to defeat the plaintiff’s claim, that was sued on as against Jones, and *471consequently to defeat the operation of the vendor’s lien as against Willis & Bro., by the extinguishment of the debt secured by said lien. This was certainly not permissible, and the court did not err in excluding such evidence.

These are the questions which .related to the defense of Willis & Bro., in a manner to require any discussion; and as the other defendants have not appealed, it is unnecessary to refer to any question relating to them.

Judgment affirmed.