Opinion
No. 3653.
February 14, 1929.
Appeal from District Court, Fannin County; Geo. P. Blackburn, Judge.
Suit by J. K. McCraw against Jim McNeal and others. Judgment for plaintiff, and defendants McNeal appeal. Affirmed.
This suit was by appellee, J. K. McCraw, against appellants Jim McNeal and his wife, Idella McNeal. It was to recover the amount (less payments of $85 and $250 thereon) of a promissory note dated January 30, 1924, for $1,900, interest and attorney's fees, payable to appellee's order on or before April 1, 1924, alleged to have been executed by appellants; and to foreclose a vendor's lien securing the note, alleged to exist on a tract of 65 acres of land in Fannin county. Said appellee made the other appellee, R. B. Caldwell, a party defendant, alleging that said Caldwell, as receiver of the Planters' National Bank of Honey Grove, Tex., held the note as collateral security for indebtedness to that bank. Appellants' answer contained a sworn denial that they, or either of them, executed the note sued upon, and a plea alleging that the land was their homestead. It appeared from evidence heard at the trial that the 65 acres of land was conveyed by one E. E. Robertson to appellant Jim McNeal by a deed dated November 21, 1912, the consideration for the conveyance being the latter's four promissory notes for $425 each payable November 1, 1913, 1914, 1915, and 1916 secured by a vendor's lien retained on the land. Three of the notes and the lien securing same, together with his superior title as vendor of the land, were transferred by Robertson to the First State Bank of Bonham, Tex., by an instrument in writing dated December 13, 1917, and were transferred by said bank to appellee, J. K. McCraw, by an instrument in writing, dated January 8, 1921. By an instrument dated said January 8, 1921, appellant, Jim McNeal, acknowledging that $1,320 was due and unpaid on the notes, renewed same by their children, and that appellant Idella McCraw, in lieu of same, three notes for $440 each, payable January 8, 1922, 1923 and 1924, respectively. There is a recital in the instrument that the four notes to Robertson for $425 each, above referred to, were renewed by appellant Jim McNeal by an instrument in writing dated February 26, 1917, and the time for payment thereof extended to November 1, 1917, 1918, 1919, and 1920. The trial being to the court without a jury, he found as facts that, by a deed dated January 20, 1922, said appellant Jim McNeal, in consideration of the cancellation of said three notes for $440 each, then amounting, principal and interest, to $1,500, conveyed said land to appellee, McCraw; and that at the date of said deed to McCraw and before that time the land was the homestead of appellants and their children, and that appellant Idella McNeal did not join her husband in the execution of the deed conveying same to McCraw as stated. The court found, further, that by a deed dated January 24, 1924, said McCraw conveyed the land to appellants in consideration of the $1,900 note sued upon, which, the court found, was executed by appellant Jim McNeal, but was not executed (as it purported to be) by appellant Idella McNeal. The court found, further, that "after January 30, 1924," McCraw rented the land to appellant Jim McNeal, and that the latter "made payments on the $1,900 note which were credited thereon at the time of payment"; that the amount unpaid on the note was $2,459.38; and that the indebtedness for which appellee Caldwell, as receiver, held the note as security amounted to $133.27. The appeal is from a judgment in accordance with the court's findings and foreclosing the vendor's lien which appellees claimed to exist against the land as security for the payment of the $1,900 note sued upon.
Couch Couch, of Bonham, for appellants.
Cunningham Lipscomb, of Bonham, for appellees.
It appearing from the evidence that appellant Idella McNeal did not join her husband, appellant Jim McNeal, in the execution of the deed to McCraw, and it appearing, further, that the land was appellants' homestead and was being used and occupied as such at the time said deed was so executed, it is insisted the deed did not operate to pass the title to McCraw. The trial court found, and there was evidence to support his findings, that appellants owed $1,500 of the purchase price they agreed to pay E. E. Robertson for the land, and that McCraw was the owner and holder of vendor lien notes evidencing such indebtedness, and had succeeded to Robertson's rights as such vendor. It is settled in this state that "the homestead claim is inferior to the vendor's right to the unpaid purchase money," and, if such money is unpaid, that "the husband may, when his act is done in good faith, reconvey the property in satisfaction of the incumbrance, and that such reconveyance will be binding upon the wife." Evans v. Marlow (Tex.Civ.App.) 149 S.W. 347; Driscoll v. Morris (Tex.Civ.App.) 275 S.W. 196; Wheatley v. Griffin, 60 Tex. 209. It is also the law that a vendor "may pass the superior title to the holder of the unpaid purchase money note," and that "such assignee of the note and superior title may likewise pass such superior title to a subsequent assignee of the same unpaid purchase-money note." R. B. Godley Lumber Co. v. C. C. Slaughter Co. (Tex.Civ.App.) 202 S.W. 801. There was neither pleading by appellants nor proof that bad faith on the part of appellant Jim McNeal toward his wife entered into his act in conveying the land to McCraw in satisfaction of the unpaid part of the purchase money thereof. The case as made by the evidence and the law being as stated, it cannot be said the trial court erred in holding that appellant Jim McNeal's deed operated to pass the title to the land to McCraw. Therefore appellant's contention to the contrary is overruled.
As shown in the statement above, the trial court found that McCraw conveyed the land back to appellants in consideration of the execution and delivery to him of the note sued upon. It was contended by appellants in the court below, and the contention is renewed here, that the evidence did not warrant either the finding that McCraw so conveyed the land or the finding that they or either of them executed and delivered the note sued upon. The evidence was conflicting. It was for the trial court, and not this court to determine the conflict; and, he having determined it in appellee's favor on evidence warranting such a determination, this court should not, and will not, set aside his ruling in the matter. Lanier v. Looney (Tex.Civ.App.) 2 S.W.2d 349.
Quite a number of other contentions are presented by assignments in appellants' brief. Those numbered 1 to 6, inclusive, in which complaint is made of rulings of the trial court in admitting evidence specified over appellants' objection, are overruled, because we think the evidence objected to was clearly admissible as against the objections urged to it. Perhaps the objections to the testimony referred to in the assignments numbered 7 and 8 should have been sustained, but the trial was to the court without a jury; and the error, if any, in overruling the objection should be treated as harmless [Haskins v. Henderson (Tex.Civ.App.) 2 S.W.2d 864; McWhorter v. Oliver (Tex.Civ.App.) 2 S.W.2d 282], for it is not reasonable to suppose, on the record before us, that the action of the court was influenced by it to appellants' prejudice. The contentions presented by the other assignments in the brief are believed to be also without merit when considered with reference to the record, and therefore they are overruled.
The judgment is affirmed.