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Appeal from district court, Smith county; | stitute abandonment, the party must leave Felix J. McCord, Judge.

the homestead, with the intention of never Action by John T. Whitaker against O. L. returning to it for the purpose of occupying Allen to recover possession of certain real es- and using it as a home. Archibald v. Jacobs, tate. From a judgment for plaintiff, defend- 69 Tex, 248, 6 S. W. 177; Welborne v. Downant appeals. Affirmed.

ing, 73 Tex. 528, 11 S. W. 501. To our minds Whitaker & Bonner, for appellant. John

the evidence is clear that, during the time M. Duncan and T. N. Jones, for appellee.

appellant owned the 7 acres, it was never

subject to levy and sale. Had this tract been Conclusions of Fact.

levied on, instead of the 47 acres, appellant

would have undoubtedly interposed the plea RAINEY, J. In 1880, appellant, Allen,

of homestead exemption, and, under the evibought 7 acres of land in the corporate lim

dence, his plea would have been sustained. its of Tyler. He made this his homestead, It follows that, as the 47-acre tract was not he being the head of a family. In 1882 or

used in connection with the homestead for 1883 he bought 47 acres lying about one-half

homestead purposes, the improving of the mile from the 7 acres. In 1886 he bought 20

20 acres would not invest the 47 acres with acres adjoining the 47-acre tract. He was

the homestead character. There are various engaged in the nursery business, but the 47

errors assigned complaining of the charge of acre tract was never put to that use prior to

the court, and of the refusal to give special the levy, nor was it used as a homestead in

charges asked by appellant. Under the eviconnection with the 7-acre tract. In 1886

dence, we think the charge given was suffihe contracted to sell the 7 acres, and he ciently full to meet all the requirements of moved, with his family, to his father-in-law's,

the case, and the assignments are not well where he lived until about September 1,

taken. Complaint is made of the court for 1887, when he moved back to the 7 acres, excluding the testimony of one Smith, by the contract for its sale having been an

whom it was expected to prove a declaramulled. During the time he was away from

tion of appellant, made some time before said 7-acre tract, he rented it to other parties.

the levy, to the effect that he intended to After selling the 7-acre tract, in May, 1888,

make the 20 acres his homestead. If this he built a residence on the 20-acre tract, and

testimony had been admitted, it could not moved into it with his family; the 20-acre have availed appellant. His intention to, at and 47-acre , tracts being both under one some time in the future, make the 20 acres fence. On September 20, 1887, appellee his homestead, may have existed, but as long caused an execution to be levied on the 47

as he remained on the 7 acres there was no acre tract, under which the same was sold abandonment of that as a homestead, and on November 2, 1887, and bought in by ap- he could not acquire another, and what his pellee. At that time appellant was using intention was becomes immaterial. Under and occupying the 7 acres as a homestead, of

the evidence adduced, no other verdict could which the 47 acres formed no part. Before have been legally rendered. Justice has been the levy, appellant had authorized a firm of

done, and the judgment of the lower court is real-estate agents to sell the 7-acre tract, but

therefore affirmed. 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 | REYNOLDS IRON WORKS v. MITCHELL of the levy, appellant had not abandoned the

et al. 7-acre tract as a homestead, but was using (Court of Civil Appeals of Texas. May 23, and occupying it as such, but intended at

1894.) some future time to move onto the 20-acre LIMITATION OF ACTIONS-ACKNOWLEDGMENT AND tract.

PROMISE TO PAY. .

An insolvent firm wrote to plaintiff, a Conclusions of Law.

creditor, that they could not hope to pay their Where a party owns an urban homestead, debts, but would sell their homes, “provided our

creditors will accept

20 cents on the and purchases other lots or tracts of land, dollar

in full satisfaction." Subseto constitute the subsequent purchase a part quently they wrote: “The majority of our credof the homestead, it must be used, in con- itors have accepted the proposition, but we cannection with the other, for homestead pur

not make any settlement except one that em

braces all." Finally they wrote: “Regarding poses. Brooks v. Chatham, 57 Tex. 31; Allen

the amount of our account, we beg to say, v. Whitaker (Tex. Sup.) 18 S. W. 160. The whatever that may be

will 47-acre tract was not put to any such use.

be the basis of settlement. As soon as all

our creditors come in, we will proceed at once A party cannot hold two residence home

to make settlement." Held not such an admissteads at one and the same time. Where a sion of the debt and promise to pay as would party is possessed of a residence homestead, take the debt out of the statute of limitations. he cannot acquire another of the same char- Appeal from district court, Dallas county; acter until the old one has been abandoned, R. E. Burke, Judge. and the old one cannot be abandoned, by the Action by the Reynolds Iron Works against mere intention to abandon, as long as it is Mitchell & Scruggs. From a judgment for occupied and used as a homestead. To con- defendants, plaintiff appeals. Affirmed.

*

Fitzhugh & Wozencraft, for appellant. reply, we are, yourstruly, Mitchell & Crawford & Crawford, for appellees.

Scruggs."

“Dallas, Texas, Dec. 19, 1887. Reynolds LIGHTFOOT, C. J. This suit was brought Iron Works, New Orleans, La.-Gentlemen: January 9, 1891, by appellant, to recover As you know, we failed in business more upon certain indebtedness upon an account than three years ago, owing over $150,and notes between merchant and merchant, 000.00 at the time of our failure. We consisting of charges on one side and pay- greatly overestimated the value and assetaments on the other. The account is dated bility of our assets. Since then we have September, 1881; the last item charged is been unable to engage in any business whatSeptember 10, 1884. There is claimed to be ever, and have been compelled to draw op due upon the claim $12,333.86, including five the wreck of our estates for the current exnotes, due, respectively, October 15, 1884, penses of our families, which have necessariNovember 15, 1884, December 20, 1884, Jan- | ly been large. Without a dollar of working uary 20, 1885, and February 20, 1885. Ap- capital, and without an opportunity to empellant alleges that, by reason of the five ploy advantageously our personal energies, letters written by appellees to it, the just- we cannot hope to pay our debts. Our availness of the debt is acknowledged, and the able resources are now reduced to our homes, bar of the statute of limitation removed. and these we propose to sell, provided our The appellees answer, by special exception, creditors will accept from us twenty cents that the claims sued on are barred by the on the dollar on the face of their debts at statutes of limitation of two and four years, the time of our suspension, in full satisfacand specially except to the sufficiency of tion. We have submitted this proposition to the letters relied upon to remove the bar of the representatives of the large number of the statute, because (1) the letters, consid- our creditors here, and they have uniformly ered separately or jointly, do not contain a agreed to recommend the acceptance of this clear and unequivocal acknowledgment of offer to their clients. You have had an opthe justness of the debt sued on, nor do

portunity to know, and doubtless underthey express a willingness to pay the same; stand, that our affairs have gone from bad (2) because said letters are conditional, and to worse since our failure. Our homes are any offer of payment or settlement is cou- entirely unavailable to us as a basis of pled with a condition that all other creditors credit, or for any purpose, except to be accept the same terms, and, further, that

used as homestead purposes. Our disposithe parties could agree upon the amount due; tion to do the best we can for creditors, as (3) the petition fails to show any such set- well as our anxiety to relieve ourselves from tlement or adjustment of the amount due, or debt, and to place ourselves once more in a that the other creditors accepted the settle position where we may hope to use our perment proposed in the letters. The court sonal energies for our own benefit, induces sustained the exceptions, and, the appellant us to make this offer to part with our homes having declined to amend, the suit was dis- for the benefit of our creditors. We trust missed. Plaintiff appealed, and this action you will give this offer fair consideration and of the court is the only error assigned. favorable answer. When you remember you

The letters relied upon to take the case bave been spared about 10% by not bringing out of the statute of limitation are as fol- suit, etc., this offer to you amounts to about lows:

30% as to those who have sued. Awaiting "Dallas, Texas, Jan'y 31, 1887. Reynolds your reply, we are, yours, truly, Mitchell &

La

Scruggs."

We have made the following proposition to Dallas

, Texas, January 27, 1888. Reyn

our creditors: We will transfer to them olds Iron Works, New Orleans, La.-Genhomestead property, centrally located in the tlemen: We wrote you some time since a city, worth $7,500, they to release us from letter embodying a proposition of comproour unpaid liabilities, aggregating something mise made to all of our creditors. This fivds less than $60,000. For two years we have us still without a reply. The majority of sought to realize from the wreck of our our creditors have accepted the proposition, business something that will enable us to but we can make no settlement except one offer cash in settlements, but the nature of that embraces the whole of them. It would the assets, coupled with the failure in crops, be useless, at our time of life, to settle a has caused our efforts to end in failure. portion of the debts, and leave the remainHence, to relieve ourselves of the burden, der to follow us through life. We are both we offer this property, that could not be more than fifty years old, with burdensome taken by law, for the free use of our name families, and could not hope to do more than unincumbered. Thus far we have every en- support them. Left without capital, and no couragement that the proposition will be ac- basis of credit, we can't expect to do othercepted. Should this meet with your views, wise than work for salaries. We carefully please instruct your attorney here, that he considered the whole matter, and have made may be prepared to act at a meeting of the a proposition covering all we can possibly creditors which will be called to consummate pay. We had expected, in view of the fact the transaction. Awaiting your favorable that you had been at no expense in the way of lawyers' fees or court costs, that you of course will and ought to be the basis of would realize the fact that yours would be settlement. As soon as all creditors come in, net to you, while many creditors have paid we will proceed at once to make settlement. both fees to lawyers and court costs, there- We are in hopes the whole matter can be adby lessening their net receipts by that justed without much further delay. Had all amount. We thought this would prompt you responded as promptly, accepting, as most of the more readily to accept our offer. This our creditors did, you would have had your is the last effort of drowning men, and, if money 60 days ago. We do not look for we fail in this, we can nerer hope to make much further delay. Yours, truly, Mitchell & another offer of settlement. We would be Scruggs." glad to hear from you definitely on the sub. “Dallas, Texas, January 14, 1889. Reynject on receipt of this, but we much fear we olds Iron Works, New Orleans, La.-Dear will be forced to abandon the effort, as we Sirs: We are in receipt of your favor, 7th can't settle with part and leave others out. inst., asking us to keep you posted. We have Sincerely yours, Mitchell & Scruggs."

not as yet secured the co-operation of all par“Dallas, Texas, March 13, 1888. Mr. Thos. ties in interest, but hope to do so in the near O'Connor, Manager Reynolds Iron Works, future. In about thirty days one of us exNew Orleans, La.-Dear Sir: Mr. Miller, your pect to be in your city, where we will conattorney here, has advised us of a portion of fer with you fully in person. Yours, truly, your letter to him concerning our indebted- Mitchell & Scruggs." ness to your concern, and has advised us to Our conclusions, from a careful examinawrite to you. This we are reluctant to do, tion of the letters above, and from the auas our former letters to you have remained thorities, are that the letters do not contain unanswered. First. We offer creditors 20% an admission of the debt, and a promise to of what we owed them at the time of our fail- pay. Taking the letters all together, and conure, in cash, being the proceeds of the sales struing them in the strongest light against of our homes. We don't ask creditors to take the writers, we must conclude that they only our homes, as you seem to think. Second. contain a general offer of a compromise You have been wrongly advised, as stated in with all their creditors at 20 cents on the dolyour letter, by your friends in Dallas.' The lar of their indebtedness at the time of the 'storehouse' has not been completed, nor failure, provided the offer is accepted by al) does it cut any figure in our affairs. Third. of their creditors. The limit to which our If there is any difference in our accounts, the decisions have gone upon this line was in correct one will be the basis of our settle Lange v. Caruthers, 70 Tex. 718, 8 S. W. 604, ment with you. In conclusion, we beg to where it was held that a promise in writing, say you certainly are in error as to our true by the debtor, that “I will, if I am ever able, condition, and our disposition to do the best pay you," was such a conditional promise as, we can for creditors, and we feel certain no upon proof that he was able to pay, would adjustment can ever be reached until preju- show the fulfillment of the condition, and audice arising from past misrepresentations is thorize a recovery.

In this case there was removed, and our affairs dealt with as they no allegation in the pleading or effort to really exist. When this point is reached, you show that the offer to settle at 20 per cent. will only be too glad to accept our offer, was ever accepted by all the creditors, alwhich is the best we can do, and, if our of- though it was kept prominent in the correfer is rejected now, better than we can ever spondence that the offer was not to be conhope to offer again. We are doing our very sidered binding unless it was accepted by all best, and most of our creditors have so con- the creditors, and the reason for this, as statcluded, and have accepted. If our affairs are ed by the debtors, was that it would be useadjusted at an early date, we again invite less to settle with any one creditor without you to co-operate with us to this end. And settling with them all. Mitchell v. Clay, 8 we say to you, frankly, you stand in your Tex. 443; Krueger v. Krueger, 76 Tex. 179, own light when you fail to do so. Should you 12 S. W. 1004; Erskine v. Wilson, 27 Tex. accept, please send your attorney here an 117; Id., 20 Tex. 77; Smith v. Fly, 24 Tex. itemized statement of our account with you, 315; Coles v. Kelsey, 2 Tex. 541; Ang. Lim. and we will check it up, and any error we 249. We find no error in the judgment, and are in will be readily conceded. For the past it is affirmed. three months we have used due diligence to

On Rehearing. bring about a speedy settlement, and doubtless the matter has been a tedious one to you

(June 24, 1894.) as well as ourselves. Awaiting your reply, The question presented in the motion for we are, yours, truly, Mitchell & Scruggs." rehearing is the same as that upon which

"Dallas, Texas, Apr. 17, 1888. Mr. Thos. our original opinion was based, i. e. are the O'Connor, Gen'l Manager Reynolds Iron | letters set out in the opinion sufficient to Works, New Orleans, La.-Dear Sir: Yours take the debt out of the bar of the statute of April 6th, accepting 20% on the dollar, as per limitation? We have had many opinions in our proposition in general to creditors, re- this state upon this subject, but, in our judgceived. Regarding the amount of our ac- ment, none clearer than the opinion of Juscount, we beg to say whatever that may be tice Lipscomb, reported in Coles v. Kelsey, 2 Tex, 556, from which we quote as follows: ment of the debt is not sufficient, but there It will, however, be well to lay down some must be an expression of a willingness to rules as to what will be a sufficient subse- pay.” The statute as it exists now is in the quent promise or acknowledgment to take same words as the old statute of February the case out of the bar of the statute. By 5, 1841, upon which the above decision was an express provision in our statute, 'that rendered. There have been many opinions when any action may appear to be barred rendered since, but if there has been any imby any law of limitation, no acknowledg- provement upon it we have not been able to ment of the justice of the claim, made sub- find it. On the contrary, we think some of sequent to the time it became due, shall be them tend to confuse and mislead, rather admitted in evidence to take the case out of than to make clearer the doctrines of law so the operation of the law, unless such ac- plainly laid down by the old court. If the knowledgment be in writing, and signed by doctrine there laid down is not correct, that the party to be charged thereby.' This stat- case, and a number of others on the same utory provision was designed to put an end line, should be expressly overruled, and the to the almost infinite variety of decisions as correct rule upon this subject clearly anto what amounted to a subsequent promise. nounced. But the better opinion seems to be that the In the case of Webber v. Cochrane, 4 Tex. only difference introduced by the provision is 36, Chief Justice Hemphill says: “The bar in. as to the character of the proof of the ac- terposed by the statute, it is held now, can knowledgment, and not as to what words be repelled only by an express promise, would constitute such acknowledgment. In which must be proved in a clear and explicit Story on Contracts (section 1013) the follow- manner, and be, in its terms, unequivocal ing doctrine will be found: “The operation of and determinate. And if there be no express the statute may also be frustrated by an ac- promise, but one is to be raised, by implicaknowledgment of the existence of the debt, tion of law, from the acknowledgment of the or by a new promise to pay it. This prom- party, such acknowledgment should contain ise, or acknowledgment, is considered as a an unqualified and direct admission of a prenew promise, founded on the previous debt vious subsisting debt which the party is liaas a consideration, and must be sufficient in ble and willing to pay, or the acknowledgitself to support an action for the debt, in- ment must be coupled with such circumstandependent of the original promise. The ac- ces as irresistibly imply a promise to pay, knowledgment is to be considered, not as a and unaccompanied by any expression de revival of the original agreement, but as a clarative, or qualification indicative, of a new and distinct agreement in itself.' And contrary intention. Bell v. Morrison, 1 Pet. the same author proceeds in the next section 362; Young v. Monpoey, 2 Bailey, 280; Bell to illustrate the text: 'If there be no express v. Rowland's Adm'rs, 1 Hardin, 300." In promise to pay, a promise may be raised, by this case the promise relied on to take the implication of law, from the acknowledg- case out of the statute is not only vague and ment of the party. But such an acknowl- indefinite as to the acknowledgment, but, edgment must contain an unqualified admis- wherever debt is mentioned in general terms. sion of the debt, and a willingness to pay it. it is coupled with a declaration of inability An acknowledgment of the original justice of to pay, and a desire to secure some sort of the claim is not sufficient to take the case out compromise, which is coupled with a probaof the statute, unless accompanied with an ble ability, by selling their homesteads, and admission of the party's present ability. If is always conditioned upon the compromise the acknowledgment be conditional, the rem- being accepted by all creditors. We find in edy only revives on the performance of the it no unqualified and direct admission, no condition. It is not necessary, however, that expression of a willingness, or even a desire, any specific sum should be acknowledged to to pay, no promise to pay, and nothing from be due, if the acknowledgment be sufficiently which such a promise can be implied. In broad to include the debt, and sufficiently the case of Smith v. Fly, 24 Tex. 354, Judge particular to show that it was the subject- Wheeler, after referring to the rule of the matter of the contract.' The supreme court supreme court of the United States in Bell of the United States, in the case of Moore v. v. Morrison, which had been adopted in this Bank, 6 Pet. 86, maintained and laid down state, said: “Judge Story there held, if there the rules to be the same as cited from Story. be accompanying circumstances which repel The statute of 9 Geo. IV. c. 14, contains a the presumption of a promise or intention to provision that in its terms, so far as it relates pay, or if the expressions be equivocal, to a subsequent promise, is not materially vague, and indeterminate, leading to no cerdifferent from our own, and the decisions of tain conclusion, but, at best, to probable inthe English courts, under the act, appear to ferences only, it would not amount to an acharmonize with the doctrine laid down by knowledgment sufficient to take the case out Story, and by the supreme court of the Unit- of the operation of the statute. Such is the ed States. From which it appears that there language of the modern decisions. Ang must be an acknowledgment of the debt ex- Lim. $ 213 et seq.; Mitchell v. Clay, 8 Tex. isting, and an expression of a willingness to 443; Webber v. Cochrane, 4 Tex. 31."

Both must concur; an acknowledg- i The letters in this case clearly repel any presumption of a promise to pay, and show the bar, the cause of action must be based, beyond question an inability to pay, and a and the recovery had, upon the new promise. desire to compromise, on condition that all Erskine v. Wilson, 27 Tex. 117; Id., 20 Tex. creditors accept. It was not alleged or prov. 77. If a cause of action is based upon the en that this condition was ever complied letters introduced in this case, we cannot with. In the case of McDonald v. Grey, 29 find in them any clear acknowledgment of Tex. 83, Judge Moore said: "It is free from the debt, or any unconditional promise to all doubt that an acknowledgment which pay, either express or implied. The motion will, by its immediate effect, take a debt out for .rehearing is overruled. 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.

pay it.

IRVINE et al. v. LEYH. The terms upon which a debtor predicates his promise or undertaking to pay such a

(Supreme Court of Missouri, Division No. 1.

July 9, 1894.) debt are entirely within his own option and

VACATION OF JUDGMENT-FRAUD. discretion, and the creditor can only avail himself of the new promise upon the stipu- judgment for fraud unless the fraud is extrinsic

A court of equity will not set aside a lations with which it is coupled by the debt- or collateral to the matter involved on the foror; and the burden of showing that this has mer trial. been done is upon the creditor. Mitchell v.

Appeal from circuit court, St. Charles Clay, 8 Tex, 443; Smith V. Eastman, 3

county; W. W. Edwards, Judge. Cush. 355; Ang. Lim. 291. Whether made

Action by Adam C. Irvine and others before or after the bar of the statute is com

against Ferdinand Leyh to set aside a judgpleted, the creditor canot avail himself of

ment. From a judgment for defendant, an acknowledgment or promise upon condi- plaintiffs appeal. Affirmed. tion, or as a matter of compromise, unless it

For prior report, see 14 S. W. 715. is accepted within the time and upon the terms proffered. This fundamental doctrine

C. W. Wilson, for appellants. Theodore in respect to all offers of compromise is as es

Bruere, for respondent. sential and as well recognized in cases of this kind as in any others. Pool v. Relfe, 23 BLACK, C. J. John Howell conveyed 103 Ala. 701." In the case of Krueger v. Krue- acres of land to the defendant, Ferdinand ger, 76 Tex. 178, 12 S. W. 1004, the court Leyh, by a warranty deed dated the 26th says: "It is conceded that the original debt June, 1866. Howell died, leaving an estate, was barred. Where a debt is barred, the which was settled prior to 1873. At the new promise relied on must acknowledge the last-named date Leyh was dispossessed of a justness of the claim, and express a willing- part of the land so purchased by him, so that ness to pay it. Coles v. Kelsey, 2 Tex. 555. a cause of action accrued in his favor on the An acknowledgment which will take a debt broken covenants of warranty in the deed out of the bar of the statute of limitation from John Howell to him. John Howell must be clear and unequivocal, and neither left five heirs, four of whom settled with qualified by conditions or limitations. Mc- Leyh for their respective shares of the damDonald v. Grey, 29 Tex. 83; Dickinson v. ages arising from the breach of the coveLott, Id. 173; Maddox v. Humphries, 24 Tex. nants in their father's deed. Nancy Irvine, 196; Smith v. Fly, Id. 353. Considered in the other heir of John Howell, died, the light of these authorities, we think it too leaving the plaintiffs in this suit as her heirs. clear for argument that the letter relied on Leyh commenced a suit by attachment in by plaintiff to take the barred note out of 1875 against the plaintiffs in this suit to rethe operation of the statute of limitations is Gover one-fifth of the damages he had susnot sufficient for that purpose. It does not tained by the broken covenants before mencontain a clear, unequivocal, and unconditioned. The defendants in that case (plaintional acknowledgment of the justness of tiffs in this one) were nonresidents, and were plaintiff's demand, nor does it contain an duly and regularly notified by newspaper expression of a willingness to pay. We publication. Leyh obtained judgment in think it settled by the authorities supra that 1876, under which he purchased the land now the acknowledgment to relieve the claim in suit. In 1885 the defendants in that case from the operation of the statute of limita- commenced this suit to set aside the judgtion must contain an unqualified admission ment in the attachment suit, and the sheriff's of a just, subsisting indebtedness, and ex- deed based thereon. The trial court gave press a willingness to pay it. If the expres- judgment for the plaintiffs, setting the for. sion of a willingness to pay is coupled with mer judgment and sheriff's deed aside, which conditions, it devolves upon the plaintiff to judgment was reversed, and the cause reprove that the named conditions have taken manded by this court. 102 Mo. 200, 14 S. place. Leigh v. Linthecum, 30 Tex. 103." W. 715, and 16 S. W. 10. The cause was

It has been repeatedly held that where suit again tried, resulting in a judgment for the is brought upon a debt barred by limitation, defendant, Leyh, and the plaintiffs sued out and a new promise in writing made within this appeal. After the first judgment was

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