Zachary v. Gregory

32 Tex. 452

• Court: Texas Supreme Court
• Decided: July 1, 1870
• Status: Published

Opinion

Walker, J.

On a proceeding in partition between the heirs of John Mm’chison, deceased, certain lands which had belonged to deceased and descended to his children were sold. The plaintiff in error became the purchaser. The defendant in error, Gregory, had been appointed guardian of the property of the heirs of John Hurchison, deceased, and Zachary executed to him a promissory note, to secure the purchase money, in the sum of $5360 30, payable on the first day of January, 1860. The note was not paid at maturity, and Gregory brought suit upon it in his fiduciary capacity, asking the court to enforce the vendor’s lien upon the land sold to. Zachary. Personal security had been taken upon the note,.and the court would have some doubt about enforcing a vendor's lien in such case; but this question was not raised below, nor is it in this court; and we, therefore, pass it without further notice, except to say that, by the common law, the vendor’s lien is lost when personal security is taken for the purchase money. Yet our statute makes it the duty of guardians and administrators making sales of real estate, to secure the purchase money both by personal security and by lien on the land, and this was probably done in this case.

Gregory brought his suit on the note of Zachary and others, on the 24th of January, 1860, and the defendants below denied his right to sue and recover on the note, alleging that by the marriage of certain of the daughters of John Hurchison, deceased, and the majority of his son, Gregory was no longer the guardian of their property. This defense was overruled by the District Court, and a judgment was given on the note, with an order of foreclosure. The defendants excepted, and assign for error that the court erred in refusing them a continuance to make the heirs of Hurchison (who had attained their majority before suit) parties, and that the judgment was contrary to law and evidence.

The right of Gregory to sue on the note and to recover on it, has been long settled in the courts of this State. The decisions commence with the case of Thompson v. Cartwright, 1 Texas R., p. 87, and run on through to the case of Winebish v. Holt, 26 Texas R., p. 673. There is no doubt that the legal holder of a promissory note may maintain an action upon it in his own name, though the equitable ownership of the note be in another. Had the defendants below really and bona fide doubted the right of Gregory to collect the money due from Zachary, they should have brought the money into court, and filed a bill of interpleader, and compelled the heirs of Murchison, and Gregory, to settle their relative rights to the money.

The law of the case is so plainly against the plaintiff in error, that we feel bound to regard the case as one for delay, and therefore affirm the judgment below with damages.

Affirmed with damages.