Page images
PDF
EPUB

Appeal from district court, Smith county; Felix J. McCord, Judge.

Action by John T. Whitaker against O. L. Allen to recover possession of certain real estate.

From a judgment for plaintiff, defendant appeals. Affirmed.

Whitaker & Bonner, for appellant. John M. Duncan and T. N. Jones, for appellee.

Conclusions of Fact.

RAINEY, J. In 1880, appellant, Allen, bought 7 acres of land in the corporate limits of Tyler. He made this his homestead, he being the head of a family. In 1882 or 1883 he bought 47 acres lying about one-half mile from the 7 acres. In 1886 he bought 20 acres adjoining the 47-acre tract. He was engaged in the nursery business, but the 47acre tract was never put to that use prior to the levy, nor was it used as a homestead in connection with the 7-acre tract. In 1886 he contracted to sell the 7 acres, and he moved, with his family, to his father-in-law's, where he lived until about September 1, 1887, when he moved back to the 7 acres, the contract for its sale having been annulled. During the time he was away from said 7-acre tract, he rented it to other parties. After selling the 7-acre tract, in May, 1888, he built a residence on the 20-acre tract, and moved into it with his family; the 20-acre and 47-acre,tracts being both under one fence. On September 20, 1887, appellee caused an execution to be levied on the 47acre tract, under which the same was sold on November 2, 1887, and bought in by appellee. At that time appellant was using and occupying the 7 acres as a homestead, of which the 47 acres formed no part. Before the levy, appellant had authorized a firm of real-estate agents to sell the 7-acre tract, but no sale was consummated until May, 1888, when appellant and wife parted with title to said 7 acres, and in September following moved onto the 20-acre tract. At the time of the levy, appellant had not abandoned the 7-acre tract as a homestead, but was using and occupying it as such, but intended at some future time to move onto the 20-acre tract.

Conclusions of Law.

Where a party owns an urban homestead, and purchases other lots or tracts of land, to constitute the subsequent purchase a part of the homestead, it must be used, in connection with the other, for homestead purposes. Brooks v. Chatham, 57 Tex. 31; Allen v. Whitaker (Tex. Sup.) 18 S. W. 160. The 47-acre tract was not put to any such use. A party cannot hold two residence homesteads at one and the same time. Where a party is possessed of a residence homestead, he cannot acquire another of the same character until the old one has been abandoned, and the old one cannot be abandoned, by the mere intention to abandon, as long as it is occupied and used as a homestead. To con

stitute abandonment, the party must leave the homestead, with the intention of never returning to it for the purpose of occupying and using it as a home. Archibald v. Jacobs, 69 Tex. 248, 6 S. W. 177; Welborne v. Downing, 73 Tex. 528, 11 S. W. 501. To our minds the evidence is clear that, during the time appellant owned the 7 acres, it was never subject to levy and sale. Had this tract been levied on, instead of the 47 acres, appellant would have undoubtedly interposed the plea of homestead exemption, and, under the evidence, his plea would have been sustained. It follows that, as the 47-acre tract was not used in connection with the homestead for homestead purposes, the improving of the 20 acres would not invest the 47 acres with the homestead character. There are various errors assigned complaining of the charge of the court, and of the refusal to give special charges asked by appellant. Under the evidence, we think the charge given was sufficiently full to meet all the requirements of the case, and the assignments are not well taken. Complaint is made of the court for excluding the testimony of one Smith, by whom it was expected to prove a declaration of appellant, made some time before the levy, to the effect that he intended to make the 20 acres his homestead. If this testimony had been admitted, it could not have availed appellant. His intention to, at some time in the future, make the 20 acres his homestead, may have existed, but as long as he remained on the 7 acres there was no abandonment of that as a homestead, and he could not acquire another, and what his intention was becomes immaterial. Under the evidence adduced, no other verdict could have been legally rendered. Justice has been done, and the judgment of the lower court is therefore affirmed.

REYNOLDS IRON WORKS v. MITCHELL et al.

(Court of Civil Appeals of Texas. May 23, 1894.)

LIMITATION OF ACTIONS-ACKNOWLEDGMENT AND PROMISE TO PAY.

An insolvent firm wrote to plaintiff, a creditor, that they could not hope to pay their debts, but would sell their homes, "provided our creditors will accept * * 串 20 cents on the dollar * * ** in full satisfaction." Subsequently they wrote: "The majority of our creditors have accepted the proposition, but we cannot make any settlement except one that embraces all." Finally they wrote: "Regarding the amount of our account, we beg to say, whatever that may be ** will

be the basis of settlement. As soon as all our creditors come in, we will proceed at once to make settlement." Held not such an admission of the debt and promise to pay as would take the debt out of the statute of limitations. Appeal from district court, Dallas county; R. E. Burke, Judge.

Action by the Reynolds Iron Works against Mitchell & Scruggs. From a judgment for defendants, plaintiff appeals. Affirmed.

Fitzhugh & Wozencraft, for appellant. Crawford & Crawford, for appellees.

LIGHTFOOT, C. J. This suit was brought January 9, 1891, by appellant, to recover upon certain indebtedness upon an account and notes between merchant and merchant, consisting of charges on one side and payments on the other. The account is dated September, 1884; the last item charged is September 10, 1884. There is claimed to be due upon the claim $12,333.86, including five notes, due, respectively, October 15, 1884, November 15, 1884, December 20, 1884, January 20, 1885, and February 20, 1885. Appellant alleges that, by reason of the five letters written by appellees to it, the justness of the debt is acknowledged, and the bar of the statute of limitation removed. The appellees answer, by special exception, that the claims sued on are barred by the statutes of limitation of two and four years, and specially except to the sufficiency of the letters relied upon to remove the bar of the statute, because (1) the letters, considered separately or jointly, do not contain a clear and unequivocal acknowledgment of the justness of the debt sued on, nor do they express a willingness to pay the same; (2) because said letters are conditional, and any offer of payment or settlement is coupled with a condition that all other creditors accept the same terms, and, further, that the parties could agree upon the amount due; (3) the petition fails to show any such settlement or adjustment of the amount due, or that the other creditors accepted the settlement proposed in the letters. The court sustained the exceptions, and, the appellant having declined to amend, the suit was dismissed. Plaintiff appealed, and this action of the court is the only error assigned.

The letters relied upon to take the case out of the statute of limitation are as follows:

"Dallas, Texas, Jan'y 31, 1887.

Reynolds

Iron Works, New Orleans, La.-Dear Sirs: We have made the following proposition to our creditors: We will transfer to them homestead property, centrally located in the city, worth $7,500, they to release us from our unpaid liabilities, aggregating something less than $60,000. For two years we have sought to realize from the wreck of our business something that will enable us to offer cash in settlements, but the nature of the assets, coupled with the failure in crops, has caused our efforts to end in failure. Hence, to relieve ourselves of the burden, we offer this property, that could not be taken by law, for the free use of our name unincumbered. Thus far we have every encouragement that the proposition will be accepted. Should this meet with your views, please instruct your attorney here, that he may be prepared to act at a meeting of the creditors which will be called to consummate the transaction. Awaiting your favorable

reply, we are, yours, truly, Mitchell & Scruggs."

"Dallas, Texas, Dec. 19, 1887. Reynolds Iron Works, New Orleans, La.-Gentlemen: As you know, we failed in business more than three years ago, owing over $150,000.00 at the time of our failure. We greatly overestimated the value and assetability of our assets. Since then we have been unable to engage in any business whatever, and have been compelled to draw on the wreck of our estates for the current expenses of our families, which have necessarily been large. Without a dollar of working capital, and without an opportunity to employ advantageously our personal energies, we cannot hope to pay our debts. Our available resources are now reduced to our homes, and these we propose to sell, provided our creditors will accept from us twenty cents on the dollar on the face of their debts at the time of our suspension, in full satisfaction. We have submitted this proposition to the representatives of the large number of our creditors here, and they have uniformly agreed to recommend the acceptance of this offer to their clients. You have had an opportunity to know, and doubtless understand, that our affairs have gone from bad to worse since our failure. Our homes are entirely unavailable to us as a basis of credit, or for any purpose, except to be used as homestead purposes. Our disposition to do the best we can for creditors, as well as our anxiety to relieve ourselves from debt, and to place ourselves once more in a position where we may hope to use our personal energies for our own benefit, induces us to make this offer to part with our homes for the benefit of our creditors. We trust you will give this offer fair consideration and favorable answer. When you remember you have been spared about 10% by not bringing suit, etc., this offer to you amounts to about 30% as to those who have sued. Awaiting your reply, we are, yours, truly, Mitchell & Scruggs."

"Dallas, Texas, January 27, 1888. Reynolds Iron Works, New Orleans, La.-Gentlemen: We wrote you some time since a letter embodying a proposition of compromise made to all of our creditors. This finds us still without a reply. The majority of our creditors have accepted the proposition, but we can make no settlement except one that embraces the whole of them. It would be useless, at our time of life, to settle a portion of the debts, and leave the remainder to follow us through life. We are both more than fifty years old, with burdensome families, and could not hope to do more than support them. Left without capital, and no basis of credit, we can't expect to do otherwise than work for salaries. We carefully considered the whole matter, and have made a proposition covering all we can possibly pay. We had expected, in view of the fact that you had been at no expense in the way

of lawyers' fees or court costs, that you would realize the fact that yours would be net to you, while many creditors have paid both fees to lawyers and court costs, thereby lessening their net receipts by that amount. We thought this would prompt you the more readily to accept our offer. This is the last effort of drowning men, and, if we fail in this, we can never hope to make another offer of settlement. We would be glad to hear from you definitely on the sub ject on receipt of this, but we much fear we will be forced to abandon the effort, as we can't settle with part and leave others out. Sincerely yours, Mitchell & Scruggs."

"Dallas, Texas, March 13, 1888. Mr. Thos. O'Connor, Manager Reynolds Iron Works, New Orleans, La.-Dear Sir: Mr. Miller, your attorney here, has advised us of a portion of your letter to him concerning our indebtedness to your concern, and has advised us to write to you. This we are reluctant to do, as our former letters to you have remained unanswered. First. We offer creditors 20% of what we owed them at the time of our failure, in cash, being the proceeds of the sales of our homes. We don't ask creditors to take our homes, as you seem to think. Second. You have been wrongly advised, as stated in your letter, by your 'friends in Dallas.' The 'storehouse' has not been completed, nor does it cut any figure in our affairs. Third. If there is any difference in our accounts, the correct one will be the basis of our settlement with you. In conclusion, we beg to say you certainly are in error as to our true condition, and our disposition to do the best we can for creditors, and we feel certain no adjustment can ever be reached until prejudice arising from past misrepresentations is removed, and our affairs dealt with as they really exist. When this point is reached, you will only be too glad to accept our offer, which is the best we can do, and, if our of fer is rejected now, better than we can ever hope to offer again. We are doing our very best, and most of our creditors have so concluded, and have accepted. If our affairs are adjusted at an early date, we again invite you to co-operate with us to this end. And we say to you, frankly, you stand in your own light when you fail to do so. Should you accept, please send your attorney here an itemized statement of our account with you, and we will check it up, and any error we are in will be readily conceded. For the past three months we have used due diligence to bring about a speedy settlement, and doubtless the matter has been a tedious one to you as well as ourselves. Awaiting your reply, we are, yours, truly, Mitchell & Scruggs."

"Dallas, Texas, Apr. 17, 1888. Mr. Thos. O'Connor, Gen'l Manager Reynolds Iron Works, New Orleans, La.-Dear Sir: Yours April 6th, accepting 20% on the dollar, as per our proposition in general to creditors, received. Regarding the amount of our account, we beg to say whatever that may be

of course will and ought to be the basis of settlement. As soon as all creditors come in, we will proceed at once to make settlement. We are in hopes the whole matter can be adjusted without much further delay. Had all responded as promptly, accepting, as most of our creditors did, you would have had your money 60 days ago. We do not look for much further delay. Yours, truly, Mitchell & Scruggs."

"Dallas, Texas, January 14, 1889. Reynolds Iron Works, New Orleans, La.-Dear Sirs: We are in receipt of your favor, 7th inst., asking us to keep you posted. We have not as yet secured the co-operation of all parties in interest, but hope to do so in the near future. In about thirty days one of us expect to be in your city, where we will confer with you fully in person. Yours, truly, Mitchell & Scruggs."

Our conclusions, from a careful examination of the letters above, and from the authorities, are that the letters do not contain an admission of the debt, and a promise to pay. Taking the letters all together, and construing them in the strongest light against the writers, we must conclude that they only contain a general offer of a compromise with all their creditors at 20 cents on the dollar of their indebtedness at the time of the failure, provided the offer is accepted by all of their creditors. The limit to which our decisions have gone upon this line was in Lange v. Caruthers, 70 Tex. 718, 8 S. W. 604, where it was held that a promise in writing, by the debtor, that "I will, if I am ever able, pay you," was such a conditional promise as, upon proof that he was able to pay, would show the fulfillment of the condition, and authorize a recovery. In this case there was no allegation in the pleading or effort to show that the offer to settle at 20 per cent. was ever accepted by all the creditors, although it was kept prominent in the correspondence that the offer was not to be considered binding unless it was accepted by all the creditors, and the reason for this, as stated by the debtors, was that it would be useless to settle with any one creditor without settling with them all. Mitchell v. Clay, 8 Tex. 443; Krueger v. Krueger, 76 Tex. 179, 12 S. W. 1004; Erskine v. Wilson, 27 Tex. 117; Id., 20 Tex. 77; Smith v. Fly, 24 Tex. 345; Coles v. Kelsey, 2 Tex. 541; Ang. Lim. 249. We find no error in the judgment, and it is affirmed.

On Rehearing.

(June 24. 1894.)

The question presented in the motion for rehearing is the same as that upon which our original opinion was based, i. e. are the letters set out in the opinion sufficient to take the debt out of the bar of the statute of limitation? We have had many opinions in this state upon this subject, but, in our judg ment, none clearer than the opinion of Justice Lipscomb, reported in Coles v. Kelsey. 2

In

Tex. 556, from which we quote as follows: "It will, however, be well to lay down some rules as to what will be a sufficient subsequent promise or acknowledgment to take the case out of the bar of the statute. By an express provision in our statute, 'that when any action may appear to be barred by any law of limitation, no acknowledgment of the justice 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 to be charged thereby.' This statutory provision was designed to put an end to the almost infinite variety of decisions as to what amounted to a subsequent promise. But the better opinion seems to be that the only difference introduced by the provision is as to the character of the proof of the acknowledgment, and not as to what words would constitute such acknowledgment. Story on Contracts (section 1013) the following doctrine will be found: "The operation of the statute may also be frustrated by an acknowledgment of the existence of the debt, or by a new promise to pay it. This promise, or acknowledgment, is considered as a new promise, founded on the previous debt as a consideration, and must be sufficient in itself to support an action for the debt, independent of the original promise. The acknowledgment is to be considered, not as a revival of the original agreement, but as a new and distinct agreement in itself.' And the same author proceeds in the next section to illustrate the text: 'If there be no express promise to pay, a promise may be raised, by implication of law, from the acknowledgment of the party. But such an acknowledgment must contain an unqualified admission of the debt, and a willingness to pay it. An acknowledgment of the original justice of the claim is not sufficient to take the case out of the statute, unless accompanied with an admission of the party's present ability. If the acknowledgment be conditional, the remedy only revives on the performance of the condition. It is not necessary, however, that any specific sum should be acknowledged to be due, if the acknowledgment be sufficiently broad to include the debt, and sufficiently particular to show that it was the subjectmatter of the contract.' The supreme court of the United States, in the case of Moore v. Bank, 6 Pet. 86, maintained and laid down the rules to be the same as cited from Story. The statute of 9 Geo. IV. c. 14, contains a provision that in its terms, so far as it relates to a subsequent promise, is not materially different from our own, and the decisions of the English courts, under the act, appear to harmonize with the doctrine laid down by Story, and by the supreme court of the United States. From which it appears that there must be an acknowledgment of the debt existing, and an expression of a willingness to pay it.

Both must concur; an acknowledg- I

ment of the debt is not sufficient, but there must be an expression of a willingness to pay." The statute as it exists now is in the same words as the old statute of February 5, 1841, upon which the above decision was rendered. There have been many opinions rendered since, but if there has been any improvement upon it we have not been able to find it. On the contrary, we think some of them tend to confuse and mislead, rather than to make clearer the doctrines of law so plainly laid down by the old court. If the doctrine there laid down is not correct, that case, and a number of others on the same line, should be expressly overruled, and the correct rule upon this subject clearly announced.

In the case of Webber v. Cochrane, 4 Tex. 36, Chief Justice Hemphill says: "The bar interposed by the statute, it is held now, can be repelled only by an express promise, which must be proved in a clear and explicit manner, and be, in its terms, unequivocal and determinate. And if there be no express promise, but one is to be raised, by implication of law, from the acknowledgment of the party, such acknowledgment should contain an unqualified and direct admission of a previous subsisting debt which the party is liable and willing to pay, or the acknowledgment must be coupled with such circumstances as irresistibly imply a promise to pay, and unaccompanied by any expression de clarative, or qualification indicative, of a contrary intention. Bell v. Morrison, 1 Pet. 362; Young v. Monpoey, 2 Bailey, 280; Bell v. Rowland's Adm'rs, 1 Hardin, 300." In this case the promise relied on to take the case out of the statute is not only vague and indefinite as to the acknowledgment, but, wherever debt is mentioned in general terms. it is coupled with a declaration of inability to pay, and a desire to secure some sort of compromise, which is coupled with a probable ability, by selling their homesteads, and is always conditioned upon the compromise being accepted by all creditors. We find in it no unqualified and direct admission, no expression of a willingness, or even a desire, to pay, no promise to pay, and nothing from which such a promise can be implied. In the case of Smith v. Fly, 24 Tex. 354, Judge Wheeler, after referring to the rule of the supreme court of the United States in Bell v. Morrison, which had been adopted in this state, said: "Judge Story there held, if there be accompanying circumstances which repel the presumption of a promise or intention to pay, or if the expressions be equivocal, vague, and indeterminate, leading to no certain conclusion, but, at best, to probable inferences only, it would not amount to an acknowledgment sufficient to take the case out of the operation of the statute. Such is the language of the modern decisions. Ang. Lim. § 213 et seq.; Mitchell v. Clay, 8 Tex. 443; Webber v. Cochrane, 4 Tex. 31."

The letters in this case clearly repel any

presumption of a promise to pay, and show beyond question an inability to pay, and a desire to compromise, on condition that all creditors accept. It was not alleged or proven that this condition was ever complied with. In the case of McDonald v. Grey, 29 Tex. 83, Judge Moore said: "It is free from all doubt that an acknowledgment which will, by its immediate effect, take a debt out of the bar of the statute of limitation, must be clear and unequivocal, and neither qualified by conditions or limitations. Smith v. Fly, 24 Tex. 353; 2 Pars. Notes & B. 469. The terms upon which a debtor predicates his promise or undertaking to pay such a debt are entirely within his own option and discretion, and the creditor can only avail himself of the new promise upon the stipulations with which it is coupled by the debtor; and the burden of showing that this has been done is upon the creditor. Mitchell v. Clay, 8 Tex. 443; Smith v. Eastman, 3 Cush. 355; Ang. Lim. 291. Whether made before or after the bar of the statute is completed, the creditor canot avail himself of an acknowledgment or promise upon condition, or as a matter of compromise, unless it is accepted within the time and upon the terms proffered. This fundamental doctrine in respect to all offers of compromise is as essential and as well recognized in cases of this kind as in any others. Pool v. Relfe, 23 Ala. 701." In the case of Krueger v. Krue ger, 76 Tex. 178, 12 S. W. 1004, the court says: "It is conceded that the original debt was barred. Where a debt is barred, the new promise relied on must acknowledge the justness of the claim, and express a willingness to pay it. Coles v. Kelsey, 2 Tex. 555. An acknowledgment which will take a debt out of the bar of the statute of limitation must be clear and unequivocal, and neither qualified by conditions or limitations. McDonald v. Grey, 29 Tex. 83; Dickinson v. Lott, Id. 173; Maddox v. Humphries, 24 Tex. 196; Smith v. Fly, Id. 353. Considered in the light of these authorities, we think it too clear for argument that the letter relied on by plaintiff to take the barred note out of the operation of the statute of limitations is not sufficient for that purpose. It does not contain a clear, unequivocal, and unconditional acknowledgment of the justness of plaintiff's demand, nor does it contain an expression of a willingness to pay. We think it settled by the authorities supra that the acknowledgment to relieve the claim from the operation of the statute of limitation must contain an unqualified admission of a just, subsisting indebtedness, and express a willingness to pay it. If the expression of a willingness to pay is coupled with conditions, it devolves upon the plaintiff to prove that the named conditions have taken place. Leigh v. Linthecum, 30 Tex. 103."

It has been repeatedly held that where suit is brought upon a debt barred by limitation, and a new promise in writing made within

the bar, the cause of action must be based, and the recovery had, upon the new promise. Erskine v. Wilson, 27 Tex. 117; Id., 20 Tex. 77. If a cause of action is based upon the letters introduced in this case, we cannot find in them any clear acknowledgment of the debt, or any unconditional promise to pay, either express or implied. The motion for rehearing is overruled.

IRVINE et al. v. LEYH. (Supreme Court of Missouri, Division No. 1. July 9, 1894.)

VACATION OF JUDGMENT-FRAUD.

A court of equity will not set aside a judgment for fraud unless the fraud is extrinsic or collateral to the matter involved on the former trial.

Appeal from circuit court, St. Charles county; W. W. Edwards, Judge.

Action by Adam C. Irvine and others against Ferdinand Leyh to set aside a judgment. From a judgment for defendant, plaintiffs appeal. Affirmed.

For prior report, see 14 S. W. 715. C. W. Wilson, for appellants. Bruere, for respondent.

Theodore

BLACK, C. J. John Howell conveyed 103 acres of land to the defendant, Ferdinand Leyh, by a warranty deed dated the 26th June, 1866. Howell died, leaving an estate, which was settled prior to 1873. At the last-named date Leyh was dispossessed of a part of the land so purchased by him, so that a cause of action accrued in his favor on the broken covenants of warranty in the deed from John Howell to him. John Howell left five heirs, four of whom settled with Leyh for their respective shares of the damages arising from the breach of the covenants in their father's deed. Nancy Irvine, the other heir of John Howell, died, leaving the plaintiffs in this suit as her heirs. Leyh commenced a suit by attachment in 1875 against the plaintiffs in this suit to reGover one-fifth of the damages he had sustained by the broken covenants before mentioned. The defendants in that case (plaintiffs in this one) were nonresidents, and were duly and regularly notified by newspaper publication. Leyh obtained judgment in 1876, under which he purchased the land now in suit. In 1885 the defendants in that case commenced this suit to set aside the judg ment in the attachment suit, and the sheriff's deed based thereon. The trial court gave judgment for the plaintiffs, setting the former judgment and sheriff's deed aside, which judgment was reversed, and the cause remanded by this court. 102 Mo. 200, 14 S. W. 715, and 16 S. W. 10. The cause was again tried, resulting in a judgment for the defendant, Leyh, and the plaintiffs sued out this appeal. After the first judgment was

[ocr errors]
« PreviousContinue »