The appellant's propositions in effect present the point in view of appellant's right to recover a personal judgment against A. F. Yeager in the special facts of the case. The determining point is that of whether or not A. F. Yeager assumed to pay $2,677.50 and interest on the seven prior lien notes sued on. Since the evidence is undisputed, as admitted, the question arising is purely one of law. At the time A. F. Yeager purchased the 12.11 acres of the 81.3-acre tract from E. F. Andrews, there were prior outstanding vendor's lien notes against the entire 81.3-acre tract, owing by E. F. Andrews. The consideration to be paid by A. F. Yeager to E. F. Andrews for the 12.11-acre portion was his notes payable to E. F. Andrews, aggregating $2,677.50, and there was no other consideration recited in the deed or agreed upon. Considering such circumstances alone, there was no promise to pay the outstanding lien notes, or any part of them, by A. F. Yeager, and, as a consequence, he could not be liable thereon. He was merely in the legal position of a subsequent purchaser of a part of a tract of land, the whole of which was subject to prior liens enforceable against all of the land. Therefore the liability of A. F. Yeager must rest, if at all, on the collateral agreement in evidence, made between him and his vendor, E. F. Andrews. That agreement expresses the intention and object of the parties as follows:
"It is the intention of both parties hereto that the purchase money to be paid by the second party (Yeager) to the first party (Andrews) is to be applied on the payment of the indebtedness due and owing by said first party (Andrews) on the 81.3 acres, of which the said 12.11 acres are a part, and that said notes, executed by the said second party (Yeager), and payable to said first party (Andrews), are nonnegotiable and noncollectible, except for the purpose of paying on said indebtedness due and owing by the first party (Andrews) on said 81.3 acres of land."
In this intention and purpose, it was then —
"agreed that said notes executed by said second party (Yeager) to said first party (Andrews) are to be placed in escrow in the First National Bank of Farmersville, Texas, with the understanding that same are to be collected as they become due, together with the interest thereon, and that said money is to be applied by said First National Bank of Farmersville, Tex., on the payment of said indebtedness due and owing by said first party (Andrews) on said 81.3 acres of land."
It is evident from the agreement, by intention and effect, that the parties thereto were seeking to have appropriation of payments of the consideration for the 12.11 acres to the reduction pro tanta of the prior incumbrance in order to protect the 12.11 acres. It does not, by intention or effect, undertake to have A. F. Yeager assume the payment of the prior lien or become chargeable with the prior lien debt to the amount of his notes, but solely for the benefit of the purchaser of the 12.11 acres. While, by the performance of the agreement, a benefit may inure to the prior lienholder, yet the agreement, as is evident, was not made for his benefit, and he was not the party intended to be benefited.
The exercise of the right of appropriation of payments belongs exclusively, as a general principle, to the debtor and creditor. 30 Cyc. p. 1250. And, if the appellant became a party to such agreement, it was by reason of the transfer and assignment unto him by E. F. Andrews "of the notes described in a certain deed executed by E. F. Andrews to A. F. Yeager, dated July 1, 1919, by which 12.11 acres of land is conveyed." But, it is admittedly shown, the appellant afterwards "transferred and assigned" unto T. R. Fielder "the notes described in a certain deed executed by E. F. Andrews to A. F. Yeager, dated July 1, 1919, by which deed 12.11 acres is conveyed." T. R. Fielder, while he was the owner and actual holder, as appears, of the notes of A. F. Yeager, entered into an agreement with A. F. Yeager, by which a reconveyance of the 12.11 acres was made and a release and discharge of the notes formerly executed was effected, and, in that respect, the trial court's conclusion is correct that —
"The defendant A. F. Yeager had the legal right to reconvey the land to T. R. Fielder and secure a release and discharge of his notes."
No other parties at that time, except Yeager and Fielder, had a legal interest or right in the collection of the Yeager notes and appropriation of the payments on same. The transfer and assignment of the Yeager notes *Page 124 by both Andrews and Mason was entirely without words or agreement of limitation, and the legal consequence of an absolute unconditional assignment accompanied by actual delivery, as here, would attach, carrying full right in T. R. Fielder to deal with the same, as well as the security therefor.
The judgment of the trial court was, we conclude, correct, and it should be affirmed, which is accordingly ordered.