Opinion
No. 3950.
February 5, 1931. Rehearing Denied February 19, 1931.
Appeal from District Court, Harrison County; Reuben A. Hall, Judge.
Suit by Mrs. Alice A. Womack and others against Martha Anderson and others. Judgment for plaintiffs, and defendants appeal.
Modified and, as modified, affirmed.
The appellants have appealed from a judgment establishing the claim for $929.61 with the addition of 10 per cent. as attorney's fees, and the foreclosure of a vendor's lien on 109 acres of land.
It was shown that on May 16, 1903, W. T. Twyman, as the owner, by general warranty deed conveyed to Wash Anderson 109 acres of land in consideration of four notes of $212.50 each, payable to W. T. Twyman or order, and due respectively November 1, 1903, November 1, 1904, November 1, 1905, and November 1, 1906. The notes provided for 10 per cent interest from November 1, 1904, until paid, but did not provide for interest on any past-due interest nor for attorney's fees. The vendor's lien was expressly retained in the deed to secure the payment of the purchase price money notes. Wash Anderson and his wife and children went into possession of the land, cultivated, used, and occupied the same as their homestead from the date of the deed until the death of Wash Anderson, which occurred July 1, 1929. The wife and two of the children continued to use and occupy the land as their homestead after the death of Wash Anderson up to and including the date of the trial of the case. The original petition was filed December 28, 1928. It was conceded as a fact that the land was the homestead of Wash Anderson and his wife.
It appears that on the first purchase-money note set out in the deed, Wash Anderson made payments of January 26, 1905, November 20, 1909, and November 28, 1910, all of which fully paid the principal and interest and left $89.95 above such amounts. There was indorsed on this first note when the last payment on November 28, 1910, was made, "This note overpaid and the balance $89.95 credited on second note." The second note set out in the deed showed indorsed thereon credits, viz.: "November 28, 1910, by cash $89.95, November 21, 1911 by cash $214.55." Thereafter on January 1, 1914, Wash Anderson and W. T. Twyman signed the following written instrument:
"The State of Texas,
"County of Harrison.
"This contract made and entered into by and between W. T. Twyman and Wash Anderson, each of the County of Harrison, State of Texas, witnesseth: That whereas on May 16, 1903, W. T. Twyman conveyed to Wash Anderson 109 acres of land (here follows description) and the said Wash Anderson executed four promissory notes as payment for said tract of land (here follows description of notes); and whereas three of said notes with the interest thereon are due and unpaid and amount to $944.00 and said W. T. Twyman is the owner of said notes; and whereas the amount due on the three notes is now evidenced by one note of even date herewith in the sum of $944.00 with interest at the rate of 10% per annum from date. Now, therefore, for mutual benefit the said W. T. Twyman and Wash Anderson being the parties in interest hereto, have agreed to an extension of the time for the payment of the unpaid portion of the said indebtedness and hereby agree that the said sum of $944.00 shall be due and payable on January 1, 1915, with interest at the rate of 10% per annum from date till paid; Now, therefore, I, the said Wash Anderson, for the purpose of securing the payment of said notes and interest hereby acknowledge, confirm and ratify the said vendor's lien held against said property and agree to pay said note in the sum of $944.00 with interest from this date on January 1, 1915, and on default of payment of said note and accumulated interest thereon, the said W. T. Twyman is fully empowered to subject the said property to the payment thereof the said original vendor's lien being hereby specially recognized and kept in force."
Upon the execution of that instrument and on the said date of January 1, 1914, the said Wash Anderson executed a note due on January 1, 1915, payable to W. T. Twyman or order, for $944.00 with 10 per cent. interest from date until paid. This note further recited, viz.:
"This note is given in renewal of and to take the place of three notes for the sum of $214.50 each, and the accumulated interest thereon signed by Wash Anderson and bearing the date of May 16, 1903, and payable to W. T. Twyman or order, and due November 1, 1904, November 1, 1905, and November 1, 1906, respectively, and which notes are secured by vendor's lien upon 109 acres of land referred to in said notes and fully described in the deed from W. T. Twyman to Wash Anderson of the same date of the notes and recorded in deed records of Harrison County, Texas, reference to which is hereby made. The said notes and lien are now the property of W. T. Twyman. Interest on this note payable annually and all past due interest shall bear interest at the rate of 10% per annum.
"If this note is not paid at maturity and is placed in the hands of an attorney for collection, I agree to pay 10% additional upon the principal and interest then due as attorney's fees. To secure the payment of this note in addition to said vendor's lien here recognized, a deed of trust herewith is executed."
No deed of trust appears to have been executed. On the back of the above note were the following indorsements:
"January 1, 1916, by cash, $67.75.
"October 12, 1917, by cash, $135.44.
"November 3, 1917, by cash, $204.94."
On November 21, 1917, W. T. Twyman executed and duly acknowledged a written instrument which, after reciting in detail the sale of the land to Wash Anderson and his execution of four purchase-money notes, and of the last note, states, viz.:
"Now, therefore, know all men by these presents, that I, W. T. Twyman, the payee, and the owner and holder of said notes, for and in consideration of the sum of Eight hundred and Seventy-two ($872.00) Dollars to me in hand paid by John F. Womack, have sold, transferred and conveyed and do hereby sell, transfer, and convey unto the said John F. Womack of the County of Harrison, Texas, the said notes and the said lien and all liens and title held by me in and to said land to have and to hold the same unto the said John F. Womack, his heirs and assigns forever."
On the same date of this instrument, W. T. Twyman indorsed on the back of the three notes: "Transferred to John F. Womack without recourse on me." Then was indorsed on the $944.00 note: "November 27, 1917, by cash $100.00; December 27, 1918, $300.00." All of these written instruments were duly registered in the county clerk's office.
On December 28, 1918, Wash Anderson and his wife, Martha Anderson, executed and duly acknowledged a written instrument, omitting formal parts, reciting as follows:
"Whereas, on May 16, 1903, W. T. Twyman conveyed to Wash Anderson 109 acres of land (here follows description) and whereas as a part of the purchase money of said land, the said Wash Anderson executed four promissory notes (here follows description of the notes) and whereas in said deed a vendor's lien was retained upon said tract of land to secure payment of said notes, and whereas on January 1, 1914, three of said notes and the interest were due and payable and Nine Hundred and Forty-four ($944.00) Dollars was the amount due to the said W. T. Twyman, and whereas on said date a new note was executed in amount above stated as evidence of the true indebtedness due on said land, and said note was executed in said amount and bears 10% interest from date, and whereas said note in said sum is now past due and unpaid except credits thereon as follows (here the amounts of credits are set out); now therefore, the said Wash Anderson and his wife, Martha Anderson, for the purpose of securing the payment of said note and interest hereby confirm and ratify the said vendor's lien held against said property and agree to pay said note with all interest thereon due on or before the first day of January, A.D. 1920, and in default of payment of said note John F. Womack, who is now legal owner and holder of said note, is fully empowered to subject the property above described to the payment thereof; the said original vendor's lien being hereby specially recognized and kept in full force and effect.
"Witness our hands at Marshall, Texas, this the 28th day of December, A.D. 1918."
This instrument was duly registered in the county clerk's office on the day of its execution. Thereafter, on November 15, 1923, Wash Anderson executed and duly acknowledged a written instrument which, after reciting the execution of the three original notes, stated:
"Now therefore, for and in consideration of the sum of One Dollar ($1.00) to me in hand paid by John F. Womack, the holder of said notes, the receipt of which is hereby acknowledged and the further consideration of the renewal of said notes and extend the lien on said property to January 1st, A.D. 1925, and I hereby acknowledge the same as a valid subsisting debt and lien on said described property. I agree, promise and obligate myself to pay to John F. Womack or order, the sum of the amount of said note, together with all interest thereon on January 1, 1925, at Marshall, Texas, as evidenced by my renewal notes of even date herewith containing the usual 10% clause for attorney's fees. It is further agreed that payments have been made on said note as follows: November 28, 1910, by cash $89.95, and December 21, 1911, by cash $214.55."
On November 16, 1928, Wash Anderson executed and acknowledged a similar written instrument renewing and extending the time of payment of the $944 note so as to provide that the maturity date thereof would be July 1, 1925. All of the above evidence as set out is without dispute.
The appellees in their petition set up the execution of the various revivals and extensions of the notes and lien, and asked for judgment establishing the amount found to be due and owing and for foreclosure of the vendor's lien retained against the land. The appellants, the wife and two children of Wash Anderson, deceased, set up as a defense that the revival and the renewals of the notes and lien were illegal and void as the notes and the lien were barred by limitation and the land was homestead and the homestead rights had become vested at the time of such revival and renewals; that the notes had been paid and that Wash Anderson had been overreached and imposed upon in the execution of the renewal note of January, 1914, for $944. There was evidence offered on the part of the appellants going to show payment of the notes, and there was evidence offered on the part of appellees going to show that the notes were paid in part principal and interest only, and that Wash Anderson admitted in writing the notes were not wholly paid. There is no evidence showing that Wash Anderson was overreached in the execution of the renewal of the notes.
The case was submitted on special issues and the jury answers were, in substance, that the notes had not been paid in full; that all credits had been made on the notes; that all moneys over and above the amount of the supply accounts had been applied as credits on the notes. As there is evidence to support the jury's findings, their findings are here adopted. The jury made the two findings, viz.: (1) "The amount due upon the vendor's lien notes Nos. 2, 3 and 4, for $212.50 each, bearing interest at 10%, after allowing credits for all payments, is in amount of $929.61." (2) "The amount due upon the note introduced in evidence in the sum of $944.00 bearing interest at 10% from date, after allowing credits for all payments is in amount $1,169.40."
I. C. Underwood, of Marshall, for appellants.
Scott, Casey Hall, Beard Abney, and Y. D. Harrison, all of Marshall, for appellees.
The appellant presents the point, in effect, that the appellees were not entitled to recover a judgment for the notes and for foreclosure of the lien because the notes and lien were absolutely barred and the revivals and renewals were after the expiration of the period of limitation and after the homestead rights had become vested. This proposition entirely depends upon whether or not the renewals in evidence were all of them legally void and ineffectual It may be conceded for the moment in determining the point that, as contended by appellant, the written instrument of January 1, 1914, being executed by the husband alone, could not be legally regarded as reviving or restoring the barred lien and attaching its security to the purchase-money debt so as to defeat the wife's homestead rights, especially so since the passage of the act of 1905 absolutely barring in four years, not only the debt itself, but both the right to foreclose the lien and to recover the land by virtue of superior title remaining with the vendor. The act of 1905 (chapter 138, § 2), though, as amended by the act of 1913 (chapter 123, § 2) and the existing law in 1918 (Rev.St. 1911, art. 5694, as amended by Acts 1913, c. 123, § 2), did not in any wise undertake to prohibit and make void any written agreement made between the purchaser of the land and the holder of the purchase-money notes reviving the original purchase-money notes and restoring the lien after the bar of the statute. The continued right of renewal and revival of the purchase-money debt and lien after the bar of the statute was intended by the act to be in the original parties because such right was allowable as the subject-matter of contract by the original parties at the time of the act of 1905 (Howard v. Windom, 86 Tex. 560, 26 S.W. 483), and article 5522, R.S. of 1925, at a later time gives active expression of such continuing right, viz.:
"Provided the owner of the land and the holder of the note or notes may at any time enter into a valid agreement renewing and extending the debt and lien, so long as it does not prejudice the rights of lienholders or purchasers subsequent to the date such liens became barred of record under laws existing prior to the taking effect of, or under this Act."
Therefore, the further fact appearing in the record may be taken as essential and controlling that the wife actually joined with the husband in the written instrument of December 28, 1918, which was duly acknowledged in the manner provided by law and placed of record. By that instrument both the husband and the wife admitted that the original purchase money was unpaid, made an acknowledgment of the amount unpaid, and unconditionally promised to pay the same, and made acknowledgment and expressly restored the lien on the homestead and attached its security to the unpaid purchase-money debt. Such agreement so made by the husband and wife was, it is believed, legally valid and sufficient as a new promise and acknowledgment operating to remove the bar of the statute and revive and restore the lien and attach its security to the debt and authorizing a foreclosure of the lien upon the homestead. Oklahoma Farm Mortgage Co. v. Bellamy (Tex.Civ.App.) 265 S.W. 1070; Id. (Tex.Com.App.) 278 S.W. 180; Watson v. Bank (Tex.Com.App.) 285 S.W. 1050; Sparks v. Summers (Tex.Civ.App.) 289 S.W. 714, 717; Power v. Westhoff (Tex.Civ.App.) 4 S.W.2d 274. The extensions appearing to have been executed subsequent to 1918, while made by the husband alone, were, nevertheless, made before the notes and liens (which were revived by the instrument of 1918) had become barred by the statute of limitation. It is not doubted that the husband alone may renew a purchase-money note before the bar of the statute of limitation in order to prevent the bar of the statute if no fraud is intended upon the rights of the wife. Jackson v. Bradshaw, 24 Tex. Civ. App. 30, 57 S.W. 878.
The next point made by the appellant is that the court erred in entering judgment on the verdict of the jury because special issues Nos. 6 and 7 were conflicting and not authorizing any judgment to be entered thereon. Issue No. 6 asks the jury to find "the amount due upon the vendor's lien notes Nos. 2, 3 and 4, for $214.50 each, dated May 16, 1903, bearing 10% interest from January 1, 1901, after allowing credits for all payments made." Issue No. 7 asks the jury to find "the amount due upon the note introduced in evidence before you dated January 1, 1914, due January 1, 1915, bearing 10% interest, in the sum of $944.00 after allowing as credits all payments made." The findings on their face appear distinct and without any conflict between them, and in submitting questions upon the two sets of notes, the error, if any, was harmless in view of the record. The two sets of notes were offered in evidence merely as explanation of the revival and renewal of the original debt and the lien. The purpose of the two questions seems to have been in order to have the findings of the jury furnish the court the means by which the amount of the purchase-money debt could be readily determined. The petition of the appellee set up the entire transaction and relied for recovery upon the new promise and acknowledgment to pay the original purchase-money debt. A personal judgment was not sought against the wife, and only the amount of the renewed debt was sought to be proven and established. In fixing the amount due, the court directed judgment to be entered upon the finding of the jury as to the amount due as reflected by the three original notes executed for the original purchase money. In so doing, the court fully protected and removed the right of complaint against any liability for the $944 note previously signed by Wash Anderson as apparently reflecting the amount of the purchase money unpaid. The agreement of Martha Anderson as to the amount of revival was limited by the amount of the original purchase-money debt remaining at the time unpaid. Recovery on the $944 note executed by Wash Anderson would not have been authorized because Martha Anderson never signed such note, but even if the findings of the jury as to such note should have been taken as being the amount of the revival acknowledged by Martha Anderson, the error was prejudicial to appellee and not to appellants.
The appellant complains of entering judgment establishing the claim for $1022.57 which includes $92.96 as attorney's fees. The objection urged is that the evidence in the trial showed the full payment of the notes and that the original purchase-money notes did not include attorney's fees. The evidence raised an issue for the jury as to the payment of the notes, and we do not feel authorized in setting aside their findings of fact. The point as to the attorney's fees was not raised, as appears, in the trial court nor by assignment here. Considered as a suggestion of fundamental error, it appears that the three original purchase-money notes did not provide for attorney's fees and the written instrument executed by Martha Anderson and her husband in 1918 could be regarded as having been intended as undertaking to pay the purchase money under the terms of the original notes. It seems that renewal notes may provide for attorney's fees and be secured by the lien in homestead cases only when the original purchase-money notes provide for such fees (Duller v. McNeill [Tex. Civ. App.] 163 S.W. 636, 637), and that no lien for attorney's fees is created in the renewal notes where the original purchase money notes do not provide for attorney's fees (Finley v. Wakefield [Tex. Civ. App.] 184 S.W. 755; Hayner v. Chittim [Tex. Civ. App.] 228 S.W. 279). The Judgment is therefore modified so as to authorize the establishing of the claim for and to have foreclosure of the lien to pay only the principal and interest of the notes in the sum of $925.61. As the matter of attorney's fees was not urged before the trial court, so far as this record shows, the cost of appeal cannot be taxed against the appellee.
We have considered all the assignments of error presented by appellants and conclude that each of them should be overruled. As modified, the judgment is in all things affirmed.