Hanrick v. Alexander

Citations

• 51 Tex. 494

Syllabus

<p>Lien—Vendor and vendee—Indorser.—B contracted to sell a tract of land to 0 for $20 per acre. Before a deed was made, C agreed to sell the same land to D for $40 per acre. Ho bond for title was given to 0, bnt. by agreement between the three parties, I) gave his notes direct to B for the full amount under his contract with 0, and received a bond for title. B then indorsed and delivered half the notes in amount to C, as his profits on the transaction, with the understanding that B should not be responsible for their payment, but that the transfer was made to enable 0 to collect the amount lie was to receive from D. D took possession of the land and abandoned it, when possession was taken by E, the widow of C, who, after holding it for two years, surrendered possession to B. In the suit afterwards brought by E in behalf of herself and the minor heirs of C, against D as maker and B as indorser of the notes, several years after their maturity: Held—</p> <p>1. That neither on principle nor authority did the minority of the heirs of 0 exempt them from due diligence by suit in order to secure and fix the liability of B, the indorser, under article 229 of Paschal’s Digest.</p> <p>2. That, under the statute, the notorious insolvency of D, if alleged and proven, would excuse the delay in bringing suit.</p> <p>3. That if D’s only property was a claim to the land under the title bond, and if, after he had fled from the country, B, who retained the legal title, took possession of the land because of D’s failure to comply with his contract to pay, and made another contract with E, then D’s interest in the land would not constitute such property as would defeat the plea of D’s insolvency, if otherwise good.</p> <p>4. If B’s indorsement was simply to transfer the right of action to 0 without recourse, this, as between B and O’s widow and heirs, would be a sufficient defense to defeat the recovery of a personal judgment against B.</p> <p>5. If E, after qualifying under the statute