Poythress v. Ivey
Poythress v. Ivey
Opinion of the Court
Appellant filed suit against Mrs. Minnie E. Evans Ivey, in her individual capacity as well as in the capacity of independent executrix of the estate of Wm. M. Evans, deceased, and her husband Richard M. Ivey and A. Lindsay and wife V. A. Lindsay, Nelson Mebane, Mrs. Mattie Jackson, H. L. Vaughn, W. J. Meggs, and J. R. Chambers. The petition alleged that Mrs. Ivey was the surviving spouse of Wm. M. Evans, deceased, and that since the death of Evans, Mrs. Evans had intermarried with Ivey; that on June 27, 1905, Evans executed to appellant his promissory note in the sum of $400, bearing interest at 10 per cent, per annum, and stipulating for the usual 10 per cent, attorney’s fees; that on same date said Evans executed and delivered unto said appellant a deed of trust on lots 2 to 7 of block 1 of the Wm. M. Evans addition to the city of Ft. Worth, Tex., and that said mortgage was placed on record on July 5, 1905; that thereafter the said note for $400. was, by ■ consecutive annual renewal extensions, extended to June 27, 1906, 1907, 1908, 1909, 1910, 1911, and 1912, as shown by various interest payments indorsed on back of said note; said note being extended from each recurring annual period after its original date of maturity, so that the last date of maturity thereon extended it to mature June 27, 1913, and all interest, to wit, the sum of $40 a year, was paid up to and including June 27, 1912, as shown by indorse-ments on back of said note, leaving due and outstanding thereon on June 27, 1913, the sum of $400, bearing interest from said date at 10 per cent, per annum. It was further alleged that on October 29, 1910, said Evans made and executed unto defendant Mebane his warranty deed, conveying lots 2 and 3 of block 1 of said addition, and as part payment therefor said Mebane executed and delivered unto said Evans his certain 19 promissory notes, payable monthly, each in the sum of $20; that after the first two notes had matured and been paid, said Evans hypothecated the other 17 of said notes to appellant to secure the $400 note, said notes being indorsed in blank, and that appellant became vested with the legal title thereto, together with the liens on said land and said notes to secure appellant in the payment of said $400 note; that on February 21, 1907, said Evans by general warranty deed conveyed to the Lindsays lot 6 out of said block, and that said Lindsays executed and delivered to said Evans their promissory note in the sum of $765, payable in monthly installments of $15 each; that said note had 41 credits indorsed on the back thereof as payments, aggregating the sum of $485; that on March 9, 1909, said Evans executed and delivered unto said 'appellant “his, certain collateral promissory note” in the sum of $450, due one year from date, and bearing 10 per cent, interest, etc., “and said aforementioned note for $765 attached thereto as collateral security securing same, and also indorsed said note in blank on the back thereof, and deposited and hypothecated same with said Poythress as security for said $450.” It was alleged that “by reason of such acts, said Poythress became vested with the title, liens, and security as securing same.” A credit of $205 on the $450 note was admitted. It was further alleged that Mrs. Evans qualified as independent executrix of the estate of her deceased husband,’ and that thereafter said appellant filed his claim against the estate of said Wm. M. Evans, and that said claim was by the court approved for the sum, of $689.31. It was further alleged that the other defendants were claiming some interest in portions of said land described, and were asking to have foreclosed their liens thereon, but that said claims and liens were inferior and subsidiary to the lien of plaintiff. De *104 fendants Lindsay and wife pleaded that any extensions given to plaintiff by said Evans on the $400 note were without their knowledge and consent and not binding on them, and that therefore they should be discharged on their plea of four-year limitation. They pleaded limitation also by exception. They further pleaded payment in full to Wm. M. Evans and his executrix, Mrs. Minnie E. Evans Ivey. From the judgment in favor of plaintiff as against Mrs. Minnie E. Evans Ivey, in her individual capacity and as independent executrix, and against Nelson G. Mebane, with the writ of foreclosure as against lots 2 and 3, owned by Mebane, and in favor of defendants Mrs. Mattie Jackson, H. L. Yauglin, the Lindsays, and the other defendants, plaintiff has appealed.
“When an action may appear to be barred by a law of limitation, no acknowledgment of the justness of the claim made subsequent to the time it became due shall be admitted in evidence to take the case out of the operation of the law, unless such acknowledgment be in writing and signed by the party [sought] to be charged thereby.”
In Wells v. Moor, 42 Tex. Civ. App. 47, 93 S. W. 220, it is said:
“The new promise pleaded was a forbearance to sue on the part of plaintiff and a promise to pay the account at a later day on the part of defendant. The subject of the transaction was an open account. The promise of forbearance on the part of plaintiff was based ón no consideration, and did not suspend his right to sue. Under the statute any acknowledgment made after a debt is due must be in writing in order to extend the bar. To allow plaintiff’s contention would amount practically to an annulment of the statute. The case of Heisch v. Adams, 81 Tex. 94, 16 S. W. 790, cited by appellant, is not decisive of the question. The principle decided in that case is that a verbal contract made after the due date and before the bar of a note, and embodying new elements of consideration which amount to a novation, takes the place of the note forming.in part the basis of the new contract, and the statute runs from the due date of the new contract. The facts here alleged fall far short of those in the case cited. In Howard v. Windom, 86 Tex. 560, 26 S. W. 483, it is held that the acknowledgment or new promise is a new cause of action which must be declared on. In Gibson v. Irby, 17 Tex. 174, it was held that a verbal agreement to extend the due date of a note, the debtor agreeing to pay the principal and interest on .that date, did not bind the holder of the note not to sue sooner; the reason given being that the contract was without consideration passing from the debtor.”
See Neyland v. Neyland, 19 Tex. 423, 430; San Antonio, etc., Loan Ass’n v. Stewart, 94 Tex. 441, 448, 61 S. W. 386, 86 Am. St. Rep. 864; Russ v. Cunningham (Sup.) 16 S. W. 446; Lowe v. Dowbarn, 26 Tex. 507, 510. Appellee cites a number of cases, to wit, Casey-Swasey v. Anderson et al., 37 Tex. Civ. App. 223, 83 S. W. 840, Carter-Battle Co. v. Clarke, 91 S. W. 882, Fambro v. Keith, 57 Tex. Civ. App. 302, 122 S. W. 40, Wright v. Deaver, 52 Tex. Civ. App. 130, 114 S. W. 165, and others, in which a parol agreement by the principal, without the consent of the surety, to extend the payment of a debt was held binding on the principal, and therefore to relieve the surety, but these cases do not deal wit-h the question of limitation, nor dispute the rule that in order for the plaintiff to recover by reason of the parol promise he must declare on said parol promise, and not on the *105 original instrument in writing. In the instant case plaintiff did not seek to recover on the parol promise, hut on the note itself. The last extension of interest, as pleaded, was made on June 27, 1912. The suit was filed August 21, 1914, more than two years thereafter. Hence any action on the oral contract alleged would have been barred by the two-year statute, even had plaintiff declared thereon. But he did not do so. Hence we conclude that the original note for $400, given on June 27, 1905, was at the time of the suit barred by the four-year statute of limitation, and that the Lindsays could successfully plead the statutes. In this connection it might be noted that there had, been no formal assignment or transfer of the $765 note from Evans to Poythress put on record. Evans merely indorsed the note in blank and delivered it to Poythress. So the Lindsays had no constructive notice of the ownership by Poythress of the note in question. The actual notice was denied by A. Lindsay, as before stated.
Affirmed in part, and undisturbed in part.
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Reference
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- POYTHRESS v. IVEY Et Al.
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