Opinion
No. 8846.
May 25, 1932. Rehearing Denied July 13, 1932.
Error from District Court, Cameron County; A. M. Kent, Judge.
Suit by the National Loan Investment Company against W. M. Ellison and wife and others, in which Ellison and wife filed a cross-action against defendants Ernest Fryck and wife. To review the judgment in favor of plaintiff against Fryck and wife primarily, and Ellison and wife secondarily, Ellison and wife bring error.
Affirmed.
Peyton A. Ellison and Hoyt A. Armstrong, both of Dallas, for plaintiffs in error.
J. M. Mothershead, of Harlingen, for appellee.
This is a suit on a promissory note for a balance of $3,793.12, and for a foreclosure of a lien created by a contemporaneous deed of trust on lot No. 1, block No. 3, Austin Acres, an addition to the city of Harlingen, in Cameron county.
The suit was instituted by the defendant in error against Ernest Fryck and wife, Jessie Fryck, and W. M. Ellison and wife, Louise Cook Ellison, who were the makers of the note and lien, and T. T. Dominy, trustee, and San Benito Bank Trust Company. The trustee and bank filed disclaimers and were dismissed from the suit. Plaintiffs in error filed admissions that they executed the note and mortgage, but filed a cross-action against Fryck and wife, and asked that they be held primarily liable for the debt and that they have judgment against the Frycks for foreclosure of an implied vendor's lien or an equitable lien on lots 24 and 35 in said block 3, which, together with lot No. 1, had been conveyed to Fryck and wife by plaintiffs in error. In that deed the consideration was recited as $10 and the assumption of the debt due defendant in error. Fryck denied assumption of the debt due defendant in error.
The cause was heard by the court without a jury, and judgment rendered in favor of defendant in error for $4,172.43, against Fryck and wife primarily, and Ellison and wife secondarily, and the lien was foreclosed on lot No. 1, herein described. The court further decreed that there was no fraud in the transfer by the Ellisons to the Frycks of lot No. 1, and they were denied a recovery against the Frycks.
The judgment in favor of the National Loan Investment Company is not assailed by plaintiffs in error in this court and their error bond is only made payable to that company. The only assignment of error is as follows: "The Court erred in failing and refusing to grant W. M. Ellison and wife, Louise Cook Ellison, a foreclosure of an equitable lien on lots 24 and 25 in block 3, Austin Acres addition to the City of Harlingen, Texas, because the consideration for the transfer of said lots to Ernest Fryk and Jessie Fryk was their assumption and agreement to pay the indebtedness against lot #1, in favor of The National Loan and Investment Company, which they failed to pay."
The issue sought to be presented in that assignment of error in no way touches any interest of defendant in error, and it follows that the judgment should be affirmed.
Affirmed.