author: LOONEY, J.

text:
    YONACK et al. v. EMERY.
    (No. 10258.)
    Court of Civil Appeals of Texas. Dallas.
    Feb. 25, 1928.
    Rehearing Denied March 31, 1928.
    1. Equity <g=o66 — Plaintiff seeking relief from usurious contract was required only to offer to do equity.
    Plaintiff alleging that note secured by trust deed was usurious and seeking to recover as penalty double amount of interest collected thereon by defendants and to enjoin defendants from selling property under trust deed pending suit was not required to pay balance on note into court as condition precedent to equitable relief; he being required only to offer to do equity.
    2. Appeal and error <S=592fl(3)— On appeal from judgment continuing injunction in force, reviewing court presumes that on trial court will protect defendant’s rights.
    Where plaintiff alleged that transaction in which he gave a note secured by a trust deed was usurious, and sought recovery as penalty in double amount of interest collected, and injunction restraining defendants from foreclosing trust deed during pendency of suit, on appeal from judgment continuing injunction in force, reviewing court will presume that on trial on merits court will impose terms authorized by evidence which will protect rights of defendants.
    3. Equity <8=344 — Plaintiff proving usurious transaction could recoyer statutory penalty and have it applied to extinguishment of unpaid principal of note without being put to election (Const, art. 5, § 8; Rev. St. 1925, art. 1906, subd. 6).
    Where plaintiff alleged that transaction in which note secured by trust deed was given was usurious and sought recovery as penalty double amount of interest collected by defendants and to restrain defendants from selling property under trust deed during pendency of suit, in view of system prescribed by Const, art. 5, § 8, and Rev. St. 1925, art. 1906, subd. 6, under which courts administer both law and equity, plaintiff showing right thereto could recover statutory penalty and have it applied in ex-tinguishment of unpaid principal of note without being put to election to sue for penalty and pay balance of note or waive penalty and have payments credited to principal.
    4. Usury <8=»95 — Plaintiff electing to have payments applied to principal of usurious note must pay balance as condition precedent to recovery of penalty.
    Where plaintiff alleged that transaction in which note secured by trust deed was given was usurious, and sought to recover as penalty double amount of interest collected, plaintiff, if electing to have payments. on note applied to principal thereof, was required to pay portion of principal unpaid as condition precedent to equitable relief.
    5. Usury ®=»95 — If penalty recovered was less than amount of usurious note, plaintiff must pay difference as condition precedent to equitable relief.
    Where plaintiff alleged that transaction in which notes secured by trust deed was given was usurious, plaintiff could elect to sue for penalty in double amount of interest collected, and if amount recovered exceeded unpaid principal of note he was entitled to have note and trust deed canceled and judgment over for excess, but if penalty recovered was less than amount of principal, he was required to pay difference as condition precedent to equitable relief.
    6. Injunction <8=3172 — Refusal to dissolve temporary injunction held proper, where answer did not unequivocally deny grounds for equitable relief.
    Where plaintiff alleged that note secured 'by trust deed was usurious, and temporary injunction restraining defendants from selling property under trust deed during pendency of suit was granted, .court did not err in refusing to’ dissolve injunction, where defendant’s answer did not specifically and unequivocally deny plaintiff’s grounds for equitable relief.

      7. Usury <§=76 — Usurious contracts are void in hands of every holder.
    Since the statute denounces all usurious contracts as illegal and void, they cannot be validated by being put in circulation and are void in bands of every holder.
    8. Injunction <§=135 — Question of preserving status of litigation until final trial rests in trial court’s discretion.
    The question of preserving the status of litigation until final trial rests in sound discretion of trial court.
    Appeal from District Court, Dallas County; T. A. Work, Judge.
    Action by C. A. Emery against Julius Yon-ack and another. From a judgment continuing an injunction in force, defendants appeal.
    Affirmed.
    Emil Corenbleth and Geo. T. Burgess, both of Dallas, for appellants.
    George Clifton Edwards, of Dallas, for ap-pellee.
   LOONEY, J.

C. A. Emery, plaintiff be'low, alleged substantially that Julius and Jacob Yonack owned a note originally given by plaintiff to W. C. Gill for the principal sum of $2,000, bearing 8 per cent, interest per an-num, payable $50 per month with interest on the unpaid balance, secured by a deed of trust on a lot of land situated in the city of ' Dallas, in which William T. Sargeant is named as trustee; that this transaction is usurious and void, in that the actual principal of the note was only $1,460, the sum of $540 added, to make the note $2,000, was without consideration; that the monthly installments of principal and interest collected thereon constituted and was a fraudulent scheme, device and subterfuge employed to collect usurious interest; that the original payee, Gill, was a mere tool used by appellants in said scheme; that they had notice, and actual .knowledge, of all facts connected with the usurious and fraudulent nature of the contract; that plaintiff had theretofore paid on the note the sum of $1,149.78, of which amount appellants applied $410 to principal and $789.78 to interest, the same being in excess of 10 per cent, per annum on the actual principal, and that by reason of these facts appellants are liable to plaintiff in the sum of $1,479.56 penalty, being double the amount of the interest collected — wherefore he asked judgment for the sum of $429.56, the amount of penalty, less $1050, balance due on the principal, and that- the note and trust deed be canceled.

Sargeant, the trustee in the deed of trust, was also made a defendant.

These allegations were under oath, and, as ground for injunction, plaintiff alleged that, notwithstanding he was not indebted to the defendants in any sum whatever, they claim an indebtedness against him of $1,050, with usurious interest and attorney’s fees, and were threatening to have his property sold under the trust deed for the satisfaction of same; wherefore he prayed for injunction. On presentation, the court granted a temporary writ enjoining appellants from selling the property under the trust deed during the pendency of the suit.

Appellants filed an answer to the merits, and also a motion to dissolve, which was, on exceptions urged by plaintiff, dismissed by the court, ■ and the injunction continued in force from which this appeal is prosecuted.

Appellants, among other things, complain of the action of the court in excluding evidence tending to show that the amount of interest paid did not exceed the sum of $196.40, instead of the sum of $739.78, alleged by plaintiff. The amount of interest paid by plaintiff will be left for determination when the ease is tried on its merits; hence assignments and propositions involving that issue will not be considered on this appeal.

Appellants make the contention that the court erred in granting the injunction and in refusing to dissolve same on their motion, for the reason that the plaintiff admitted he had received $1,460 in money on the contract and had only paid $1,149.78, leaving $310.22 unpaid thereon, which he should have paid, or offered to pay, into court as a condition precedent for equitable relief.

Plaintiff was not required to do more than he did, that is, -offer to do equity. Replying to the motion to dissolve the injunction, plaintiff reiterated the contention that he was not indebted to appellants in any sum whatever on the contract, but he said:

“That, before the filing of this suit, he offered to do equity and more than equity, in that he offered to pay to defendants more than $200 more than the principal of the debt, or what was really due and owing to the owners of the note herein described as usurious interest; and that he here repeats the tender to said defendants of all that is legally owing to said defendants.”

Plaintiff was not required to do more than offer to pay the amount, if any, found to be due and owing. It will be presumed that, when the case is tried, the court will impose such terms, authorized by the evidence, of course, as will fully protect the rights of appellants. Spann v. Sterns’ Adm’rs, 18 Tex. 556; Maloney v. Eaheart, 81 Tex. 281, 284 285, 16 S. W. 1030 ; Hamburger v. Kosminsky (Tex. Civ. App.) 61 S. W. 958.

However, if plaintiff’s main contention is correct, he was not required to pay or ipffer to pay any sum as a condition precedent to equitable relief. He showed that he received on the contract only $1,460, for which the note, amounting to $2,000, bearing 8 per cent, per annum, was given; that, he had paid on the contract $1,149.78, of which appellants applied ⅞739.78 to' interest and $410 to principal, leaving a balance of $1,050 unpaid; that, by reason of the facts, he is entitled to recover double the amount of the interest paid, to wit, the sum of $1,479.50, as penalty, for which he prayed judgment, together with cancellation of the note and trust deed.

The contract described above is unquestionably usurious, and, if these allegations are established on final trial and appellants are held liable, the principal of the debt will be wiped out by the penalty, and a balance of $429.56 left in favor of plaintiff. Under this view, neither tender nor offer to pay a balance, which could not exist, was required.

Appellants insist that plaintiff could not, in an equitable proceeding, recover a statutory penalty and have it applied to the extinguishment of the unpaid principal; that he was put to his election, either to sue appellants for the penalty and pay the balance of principal in full, or to waive the penalty, have all payments theretofore made on the contract credited to principal, and pay the balance remaining, if any.

This contention ignores entirely our blended system, under which courts administer both law and equity. Courts of this state have powers which courts in jurisdictions where the blended system has not been adopted do not have, that is, of decreeing forfeitures and penalties and of granting, in the same action, both legal and equitable relief; hence there was no occasion for plaintiff to prosecute separate actions, nor, as a condition precedent to relief, to waive the statutory penalty. Section 8, article 5, of the Constitution ; article 1906, subd. 6, R. S. 1925.

Plaintiff could have elected to have all payments on the contract applied to principal, and, if this had been chosen, he would be required to pay the portion of the principal unpaid, if any, as a condition precedent to equitable relief (Sugg v. Smith [Tex. Civ. App.] 205 S. W. 363, 373; I. Bldg. & L. Ass’n v. Biering, 86 Tex. 476, 25 S. W. 622, 26 S. W. 39); but plaintiff had the right to elect to sue for the penalty, as he did, and if the amount' recovered should exceed the unpaid principal, he will be entitled to have the note and trust deed canceled and judgment over against appellants for the excess not consumed in extinguishing the balance of principal. However, should the penalty recovered, if any, be less than the amount of the unpaid principal, plaintiff should be required to do equity by paying the difference, as a condition precedent to obtaining equitable relief. Shropshire v. Commerce, etc., Co. (Tex. Com. App.) 280 S. W. 181, 184; Wootton v. Jones (Tex. Civ. App.) 286 S. W. 680, 686; People’s B. & L. Ass’n v. Bessonette (Tex. Civ. App.) 48 S. W. 52; Rosetti v. Lozano, 96 Tex. 57, 70 S. W. 204; Cotton v. Thompson (Tex. Civ. App.) 159 S. W. 455, 461; Guarantee, etc., Co. v. Mitchell, 44 Tex. Civ. App. 165, 99 S. W. 156.

Appellants contend further that their answer sufficiently denied the material allegations of the plaintiff’s plea for injunction, and, for that reason, they were entitled to have the temporary writ dissolved.

The material allegations, upon which plaintiff based his prayer for injunction, were not specifically denied. As to the consideration for the note, appellants alleged:

“That the real consideration of said note is contained in said note, as far as these defendants know and were aware.”

Again they say:

“That these defendants have no knowledge of any usury or fraudulent scheme, etc. * * * That said note provides for legal interest, and said defendants'have collected no usurious interest, and have no knowledge of any usurious interest, and, in so far as they are concerned, there has been no usurious interest collected on said note.”

They do not deny that $540 was added unto the note for $2,000 as a device for the collection of usurious interest, nor do they deny that they were endeavoring to compel plaintiff to pay $1,050 balance due upon the contract, although he had paid $1,149.78 on a principal that had no legal existence, except for $1,460.

We are of the opinion that appellants’ answer did not specifically and unequivocally deny plaintiff’s grounds for equitable relief, and for that reason the court did not err in refusing to dissolve the injunction. Mann v. Trinity Farm Co. (Tex. Civ. App.) 270 S. W. 926; Porter v. Johnson (Tex. Civ. App.) 140 S. W. 471; Dawson v. Baldridge, 55 Tex. Civ. App. 124, 118 S. W. 593; McAmis v. G., O. & S. F. Ry. Co. (Tex. Civ. App.) 184 S. W. 333.

It is true appellants alleged under oath that they were innocent purchasers of the note for value and before maturity, but, as our statute denounces all usurious contracts as illegal and void, they cannot be validated by being put in circulation, and are void in the hands of every holder. Thompson v. Samuels (Tex. Sup.) 14 S. W. 143, 145; Gilder v. Hearne, 79 Tex. 120, 14 S. W. 1031, approved in Maloney v. Eaheart, 81 Tex. 281, 284, 16 S. W. 1030. But, even if the answer could be construed as a specific denial of the equities of the bill, appellants were not, as a matter of right, entitled to have the injunction dissolved. The question of preserving the status of the litigation until final trial would still rest in the sound discretion of the court.

Under the case made, we cannot say that the court abused its discretion either in granting or in refusing to dissolve the injunction. Carr v. Froelich (Tex. Civ. App.) 220 S. W. 137, 140; Porter v. Johnson (Tex. Civ. App.) 140 S. W. 471; Merrell v. Moore (Tex. Civ. App.) 300 S. W. 953; Crawford v. El Paso, etc., Co. (Tex. Civ. App.) 192 S. W. 256.

It follows from what has been said that we are of tlie opinion the court did not err in refusing to dissolve the injunction; therefore all assignments and propositions urged by appellants are overruled, and the judgment of the trial court is affirmed.

Affirmed.
      <§=3For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <§^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HIGGINS, J.

license: Public Domain

text:
    KELLY et al. v. GROSS et al.
    (No. 2138.)
    Court of Civil Appeals of Texas. El Paso.
    March 8, 1928.
    Rehearing Denied March 29, 1928.
    1. Appeal and error <@=>1040(3) — Pleading <§=> 192(2) — Want of certainty and clearness in petition are defects of form not reached by general demurrer, and afford no reason for rei fusing to reverse judgment improperly sustaining demurrer.
    Want of certainty and dearness in petition are defects which cannot be availed of by general demurrer, and are not ground for refusing to reverse order improperly sustaining demurrer.
    2. Divorce <§==>139 — Public policy favors reconciliation, abandonment of divorce proceedings, and resumption of marriage relation.
    Public policy strongly favors reconciliation of parties, abandonment of divorce proceedings, and resumption of marriage relation.
    31. Husband and wife <§=>205(2) — Husband may sue wife to establish his property rights.
    Husband may maintain action against wife to establish’his property rights.
    4. Attorney and client <§=>150 — Contract for fee based upon settlement in suits for property settlement and divorce held unenforceable on reconciliation prior to consummation of suits.
    A wife was sued by her husband and another for land and chattels in which she had community interest. Later she was again sued by husband for divorce and settlement of property rights. The wife was represented by counsel, whose fee was contingent upon and to be measured by amount of her recovery in settlement of property rights of parties. The husband and wife effected- a reconciliation, and wife’s attorney sued for fee claimed due under contract. Held that such contract, could not be enforced.
    5. Attorney and client' <§=>450 — Parties to divorce proceeding owe counsel whose fee is contingent upon adjustment of property rights no duty to proceed to judgment.
    Parties to divorce proceeding, represented by counsel whose fee is contingent upon and to be measured by final adjustment of property rights of litigants, owe no duty to such counsel to carry litigation to final judgment for benefit of counsel.
    6. Attorney and client <§=>150 — Parties employing attorneys in divorce proceedings for fee determinable by adjustment of rights held not liable, where reconciliation is affected.
    In divorce proceedings, where parties are represented by counsel whose fees are contingent and to be measured by final adjustment of property rights between litigants, all such contracts of employment, if conceded to be valid, are subject to duty and implied right of litigants to reconcile their differences and resume marital relation, and, if they do so, they are not liable in damages for breach of contract of employment with attorneys.
    7. Attorney and client <§=>150 — Attorney performing services for wife for fee determinable on adjustment of property rights in divorce proceedings held entitled to reasonable value thereof, where marital relation was resumed.
    Where wife was sued^by husband to determine her interest in community property and for divorce and settlement of property rights, attorney employed by wife on contingent fee basis, fee to be determined upon adjustment of property rights, was entitled to recover reasonable value for services rendered, upon husband and wife resuming marital relation.
    8. Divorce <§=>197 — Husband and wife held personally liable upon implied contract for reasonable value of attorney’s service to wife in divorce proceedings after reconciliation.
    Where attorney performed services for wife in divorce proceedings and husband and wife resumed marital relation, held that both were personally liable on implied contract for reasonable value of such services as for necessaries.
    Error from District Court, Medina Comity; L. J. Bruchs, Judge.
    Suit by Ben H. Kelly and others against Sue Gross and husband. Suit'dismissed, and plaintiffs bring error.
    Reversed and remanded.
    See, also, 293 S. W. 325.
    Douglas, Carter & Blach, of San Antonio, for plaintiffs in error.
    Powell & Green and P. H. Swearingen, all of San Antonio, and De Montel & Ply, of Hondo, for defendants in error.
   HIGGINS, J.

This suit was brought by the plaintiffs in error, Ben H. Kelly, H. Sim Kelly, and W. S. Ethridge, against Joe Gross •and Sue Gross. General and special exceptions to the petition were sustained. The plaintiffs declining to amend, their suit was dismissed.

The petition is wanting in- proper certainty and clearness, but such defects cannot be reached by general demurrer. These are but defects of form and do not deprive the plaintiffs in error of the right of reversal if the general demurrer was improperly sustained.

The material facts alleged in the amended original petition may be summarized as follows :

The defendants are husband and wife. April 14, 1926, Sue Gross was the defendant in cause No. 2097, in which Joe Gross and another had sued her as a feme sole, under the name of Sue Johnson, to recover certain land and remove cloud from title, it being asserted in said suit that said land was Joe Gross’ separate property and Sue Johnson’s claim thereto as his former wife clouded his title. Mrs. Gross employed the plaintiff Ben H. Kelly to represent her in such suit, defend the same for her and file cross-action for protection of her community property rights. Under the name of Sue Johnson she, in writing, employed said Kelly and assigned to him. a one-half interest, in what might be recovered as her share of the community property accumulated during the period from the marriage of the Grosses in 1916 to their divorce in 1924, which contract was attached to and made a part of the petition. Thereafter said Kelly, with the consent of Mrs. Gross, associated his coplaintiffs with him as her counsel. Thereafter Mrs. Gross and plaintiffs verbally agreed that the contract of employment should include and apply to any litigation then pending and thereafter instituted to recover or secure the property rights to which she was entitled up to the date of a legal divorce. The services rendered by the attorneys 'are then stated, and “that such actions and services included the new causes Nos. 3001 and 3012, both being divorce cases filed by the said Joe Gross against the said Sue Gross, and the last cause including the efforts to recover the same property sued for in said original cause No. 2097.” The plaintiffs would have recovered judgment in favor of Sue Gross against Joe Gross for at least $13,804.50, which would have been collectable; Thereafter plaintiffs were discharged by the defendants, who had settled their differences and arranged to dismiss their actions and cross-action against each other and made some pretended reconciliation, and then or soon thereafter resumed the marital relations, rendering it impossible for plaintiffs to continue their services and complete their contract with Sue Gross, to their damage in the sum of $6,902.25, being one-fourth of the total community property of Joe and Sue Gross. Defendants are both solvent, having large and valuable holdings in their respective separate rights in addition to the community estate. The foregoing facts were alleged as the basis for the recovery against both defendants of said sum of $6,902.25, as damages for breach of the contract of employment.

The petition also set up that the reasonable value of the services rendered Sue Gross was $3,000, for which recovery in the alternative was sought against both defendants.

It is not directly so alleged in the amended original ■ petition, but the inference is that at the time Joe Gross filed suit No. 2097 and Mrs. Gross employed Ben H, Kelly to represent her, Mr. and Mrs. Gross acted upon the mistaken belief and assumption.that they had been previously legally divoreed. That such was the belief and assumption of the parties is also shown by the affirmative allegations of the defendants’ answer and by the allegations of the supplemental petition, all of which may be considered in aid of the amended original petition. Pope v. Kailway, 109 Tex. 311, 207 S. W. 514; Hubb Diggs Co. v. Fort Worth State Bank (Tex. Com. App.) 298 S. W. 419.

The marital relation is one in which society and the state are vitally interested. The public policy relating thereto is to foster and protect it, prevent separation and divorce, and encourage the parties to live together. Public policy strongly favors reconciliation of the parties, abandonment of divorce proceedings, and resumption of the marriage relation. 9 B-. C. D. title “Divorce and Separation,” ■§'§ 11 and 19. Contracts between parties to a divorce proceeding and his or her attorney have frequently been held to be promotive of divorce and declared to be illegal. Contracts whereby the attorney’s fee is made dependent on the granting of the divorce, or measured by or payable out of the alimony recovered, have been so condemned. 9 R. C. L. title “Divorce and Separation,” §§ 13 and 17.

The rule is recognized in this state that the husband may maintain an action against his wife to establish his property rights. McCartney v. McCartney, 93 Tex. 359, 55 S. W. 310; Newman v. Newman (Tex. Civ. App.) 86 S. W. 635. This seems to have been the nature of the suit first brought by Joe Gross against his wife, to defend which and protect her property rights Mrs. Gross first employed Ben H. Kelly. The suit apparently did not involve any question of divorce, and it would seem from the recitals in the contract that Mrs. Gross made the contract upon the assumption that she previously had been divorced from her husband and was a feme sole. However, Gross later filed two suits against Mrs. Gross for' divorce and settlement of property rights, and by mutual agreement of the parties to the contract the same was made to apply to these last two suits.,

We thus have a situation where the wife is sued by her husband and another for land and chattels in which she has a community interest, and is later again sued by her husband for divorce and settlement of property rights, the wife being represented by counsel whose fee is contingent upon and to be measured by the amount of her recovery in the settlement in the suits of the property rights of the parties. We have no doubt of the right of a wife thus sued to employ counsel and personally bind herself for the payment of a fee as a necessary for the protection of her marital relation and property rights. Speers Marital Rights, §§ 147-169; Cordray v. Galveston (Tex. Civ. App.) 26 S. W. 245. But such is not the nature of the fee to be paid under the contract between Mrs. Gross and her attorneys. It is contingent upon the establishment of a property right and measured by the amount recovered.

It is not necessary for us to consider the validity of this contract if the litigation between Mr. and Mrs. Gross bad proceeded to final judgment and sbe bad refused to account to ber counsel for one-balf of tbe amount allotted to ber in tbe settlement of tbe property rights. It did not so proceed, büt sbe and ber husband became reconciled and reassumed tbe marital relation.

In view of tbe interest of society and public policy of tbe state as outlined above, we are of tbe opinion that parties to a divorce proceeding, represented by counsel whose fee is contingent upon and to be measured by tbe final adjustment of tbe property rights of tbe litigants, owe no duty to such counsel to carry tbe litigation to final judgment for tbe benefit of such counsel. All such contracts of employment, if conceded to be valid, are subject to tbe duty and implied right of tbe litigants to reconcile their differences and reassume tbe marital relation; and if they do so, they are not liable in damages for breach of tbe contract of employment with tbe attorney.

This view is in accord with and supported by tbe opinion of Justice Smith in Kelly v. Gross (Tex. Civ. App.) 293 S. W. 325, where tbe present plaintiffs in error were temporarily enjoined "at tbe suit of Gross and wife from further prosecuting the cross-action of Mrs. Gross for divorce and settlement of property rights. After bolding that if for any reason a decree of divorce was not rendered tbe court was without power to disturb tbe existing status of the community property as between husband and wife, Justice Smith said:

“This conclusion brings us to appellants’ contention that, notwithstanding tbe reconciliation of the parties and their motions to dismiss, appellants had a right under their contract with Mrs. Gross to prosecute the suit to a conclusion, and enforce their assignment of one-half of whatever recovery Mrs. Gross might have obtained upon a trial of the suit. We overrule this contention. No court has the power to decree a divorce except upon the insistence of one of the parties to the union, nor except upon an affirmative showing that such party does not desire to, and cannot, and will not, resume or continue the marital relation. No other party has any right, nor can he acquire the right, to inject himself, or his claim upon either of the parties, into the divorce action, which is purely personal to those parties. It naturally follows that, when those parties compose their differences, effect a reconciliation, and move for a dismissal of the action, the court before whom it is pending has no other alternative than to grant the motion and dismiss, without the least regard to any pecuniary interest third parties may have acquired as contingent upon the granting of a divorce. This is true as a matter of public policy, which cannot contemplate' any rule which would permit outsiders to speculate upon the contingency of a disrupted marital union.
“We hold that, in the face of the reconciliation between the parties and their prayer for dismissal, the trial court had no power, in this divorce suit, to enforce appellants’ contract with Mrs. Gross for a contingent interest in the property which might have been recovered by her in the event of a divorce; that appellants acquired no right to intervene in, and prosecute, the suit against the wishes of the parties thereto, and that the trial court did not err in granting the injunction restraining appellants from further proceeding in the matter.”

But it does not follow that such counsel are entitled to no compensation for tbe services which they actually rendered. On tbe contrary, they are entitled to recover tbe reasonable value thereof. Hearne. v. Garrett, 49 Tex. 619; Matson v. Stewart (Tex. Civ. App.) 124 S. W. 736. For tbe payment of this both tbe husband and wife are personally liable upon implied contract, as for necessaries. Hicks v. Stewart & Templeton, 53 Tex. Giv. App. 401, 118 S. W. 206; Speer’s Marital Rights, §§ 153,169, and eases cited.

Tbe petition herein sought an alternative recovery upon quantum meruit, and in this respect stated a cause of action against both of tbe defendants. Tbe court therefore erred in sustaining tbe general demurrer to tbe petition.

Reversed and remanded.
      ®=>For other cases see same topic and KBY-NXJMBER in all Key-Numbered Digests and Indexes


author: RANDOLPH, J.

text:
    FIRST NAT. BANK IN LUBBOCK v. ALEXANDER et al.
    (No. 2974.)
    Court of Civil Appeals of Texas. Amarillo.
    March 7, 1928.
    Rehearing Denied April 4, 1928.
    1. Principal and surety <§=55 — 'Defendant signing note with another to enable mortgage on farm stock of such other to be released held surety and not principal on note.
    Where defendant signed note with another in order that mortgage held by bank on farm stock of such other might be released, so that such other could become tenant on defendant’s farm, held, that relation of principal and surety existed and defendant was not a principal on the note..
    2. Principal and surety <§=533— Consideration for suretyship may be benefit to principal or surety or detriment to creditor.
    The consideration passing between the parties to a suretyship may be either of benefit to the principal or surety or of detriment to the creditor.
    3. Principal and surety <§=517 — One signing note as surety for other maker may avail himself of legal protection as against creditor having knowledge of relation.
    A party who has signed a note as surety for the other maker may avail himself of the protection which the law affords a surety as against the creditor, where the latter has knowledge of the relation as surety, though relation does not appear from face of instrument.

      4. Principal and surety <®=»l 15(1) — Surety is exonerated to extent of value of security which creditor without surety’s consent parts with or renders unavailable.
    If creditor without surety’s consent parts with or renders unavailable any security or fund which he has a right to apply in satisfaction of the debt, the surety is exonerated to extent of the value of such security or to extent of impairment of its value.
    5. Principal and surety <3p>l7 — Suretyship must appear from face of contract or be known to creditor for surety to be discharged by reason of creditor’s release of securities.
    For surety to be discharged by reason of depreciation of equitable rights or remedies, as by reason of creditor’s releasing securities which could be applied to payment of debt, suretyship must appear from face of contract or be known to creditor.
    6. Principal and surety <§=>l 15(1) — 'Where mortgage securing note was released without surety’s consent, surety held entitled to have note reduced by difference between value of property and amount of prior liens.
    Where bank released mortgage securing note without consent of surety on such note, and property secured by mortgage which was also subject to prior liens was sold, held, that surety' was entitled to have deducted, from amount of note, difference between value of property and amount of prior liens.
    Appeal from District Court, Lubbock County ; Clark M. Mullican, Judge.
    Action by the First National Bank in Lubbock against Ollie Alexander and others. From the judgment, plaintiff appeals.
    Reversed and rendered.
    Wilson & Randal and J. L Kilpatrick, all of Lubbock, for appellant.
    Lockhart & Garrard and F. D. Brown, all of Lubbock, for appellee Lulu Morris.
    Morrison & Morrison, of Big Spring, for appellee State Nat. Bank.
   RANDOLPH, J.

This suit was filed in the District Court of Lubbock county by appellant; as plaintiff, against Mrs. Lulu Morris, A. L. Wasson, and the State National Bank of Big Spring, as defendants. Ollie Alexander was an original defendant in the suit, but he was disposed of by the dismissal of the suit against him, as noted in the first amended original petition, for the reasons that his place of residence was unknown, and that he is openly and notoriously insolvent. On the trial, judgment was rendered that the plaintiff take nothing by reason of its suit against the other defendants (except for the sum of $125 tendered and paid into the registry of the court by the defendant the State National Bank of Big Spring), and for all costs of court, from which judgment the plaintiff has prosecuted its appeal to this court. The plaintiff’s suit is based on a note for $664.55, executed by the defendant Mrs. Morris and the said Alexander. It appears that Alexander was indebted to the plaintiff bank in the amount of the note, the payment of which was secured by a chattel mortgage on certain personal property belonging to Alexander — consisting of six horses and mules and also on the said Alexander crop on the Wright farm in Howard county. It further appears that Mrs. Morris wanted Alexander to become her tenant on her farm in Lynn county. When Alexander approached the bank to know if the bank would carry him for an additional amount, he was told that it would not. Then he wanted to know about moving the stock to Lynn county. This, the bank would not agree to, but required him to pay off the mortgage. Alexander and Mrs. Morris then agreed to execute a joint note if the bank would release the teams, and this proposition was accepted; Mrs. Morris and Alexander signing a new note and the bank then releasing its mortgage. That was on the 12th of December. Some time in January following, the bank was informed that Alexander had not moved to Mrs. Morris’ farm in Lynn county. But the note was thereafter renewed and both Alexander and Mrs. Morris signed it. Mrs. Morris was not present at the time Alexander signed it, but when the bank ’phoned her she came down and signed the renewal note. The bank knew that Alexander had given a mortgage for $1,000 to L. B. Wright, and Alexander told its officers that he had given a mortgage to the bank at Big Spring for a like amount. The bank then demanded a mortgage, and Alexander executed a new mortgage, the one here in question. This last renewal note was for $664.50. Alexander, in July, called the bank over the ’phone and stated that owing to the drought conditions he could not get any more money and he could not make a crop without assistance, and that people were threatening to close him out, and stated that he could sell the place and cover his debts down there, if the bank would release the mortgage, and was informed that the bank would not do this unless it got its money. This conversation was over the ’phone from Big Spring to Lubbock. Alexander called again the next day, and told the plaintiff bank that “they were going to foreclose the mortgage,” and that he had a conversation with the bank, and that he could get the plaintiff bank $100 it if would release its mortgage, and the plaintiff bank again refused to do so.

Mr. Slaton, president of the plaintiff bank, testified further:

• “I also heard from Mr. Currie, or some one from the State National Bank of Big Spring. He called me up and made practically the same statement. Offered to give me $100 to release the mortgage, arid refused to give me $300. Stated that he couldn’t get it because they couldn’t get all of their money. I told him to go ahead and foreclose. On the next day Mr. Currie had a conversation with Mr. Den-man. The substance of his conversation with Mr. Denman was that they would give $125 if we would releaée the mortgage, and that if we didn’t release they would take steps and go ahead and foreclose. I believe he said that there wouldn’t be enough hardly to cover the indebtedness there. I think he said that if we foreclose it will not cover the debts here. After these conversations I tried to get Mrs. Morris on the ’phone and couldn’t get her. So I wired the bank there that we would accept- the $125. Would release the mortgage upon receipt of $125. That is the telegram that was introduced in evidence by Mr. Currie. It was dated the 23d of July. I saw Mrs. Morris on the 27th of July. She came to the bank. I told her about it. About the telephone conversation and what I had done and I told her that was the best we could do. She replied, ‘I expect that’s right.’ Then she went out of the bank and returned and said she wouldn’t do it. She was gone about an hour. She.said that she had reconsidered and that she wouldn’t accept it, wouldn’t consider the release. It was my understanding that she had consulted an attorney. At the time of the first conversation I had with Mrs. ^Morris, I had not received the draft for $12o from the Big Spring Bank that I had wired I would accept. But when she returned and said that she would not consider it, we had received it. After this second conversation with Mrs. Morris, in which she stated that she wouldn’t accept it, I wired the bank that she wouldn’t agree to it. I don’t believe that I had received the $125 at the time I sent the wire to the bank, “"but I received it some time that day. I returned the draft. I returned the identical draft just as it was received'.
“I saw Mrs. Morris on the 27th of July. I saw her before I sent the second telegram. Whatever date I sent the second wire I had seen Mrs. Morris before I sent it. I can’t be positive as to dates, but I had seen her before I sent that wire. I am not sure whether the draft was returned the day we received it, or not. I did not return it personally; I instructed Mr. Bedford to return it. I don’t think I had the draft on July 26th, when I sent the telegram. The note was Alexander’s debt originally. I don’t know whether Mrs. Morris' got anything from that debt or not. She didn’t get anything from the bank. So far as I know she never received any benefit whatever. She told me that Alexander had. not moved on her farm. Alexander also told me that. So far as I know, Mrs. Morris never received any benefit from the signing of that note. When I sent the telegram accepting the offer of $125 for the release of the mortgage, I had not consulted Mrs. Morris, but I had tried to get her over the ’phone. That constituted a release without her knowledge or consent.”

Mrs. Morris also testified;

“I was not in Lubbock on the 23d day of July until about 6 o’clock in the evening. I don’t think that I learned anything' that evening' about Alexander selling out, but I did learn'it the next afternoon. Mr. Wright told me. The first time I' talked with Mr. Slaton was Monday morning. I went in the bank to talk to him, and he said, ‘I expect I have done something that I should not have done.’ And I said, ’What have you done?’ I didn’t know anything about the release at that time, and he went over the various telephone calls that he had had from Big- Spring with the bank and Mr. Alexander. He said that they had told him that the crop was all burned up, and that the bank wouldn’t furnish any more money to work it, and Alexander was forced to sell out, and that he had agreed to release the mortgage for $125. And when he fold me that, I said, ‘And you have released it for $125, and you mean to say that you have released that and expect me to pay the rest of it?’- Just at that time Mr. Slaton was called to the telephone, and he said, ‘Excuse me, I will have to go.’At that time we were in the bank, and when he went to the ’phone, I got up and left the bank. I didn’t go to see any attorney, or anybody else. I was so worked up over what had taken place, I finally, about 4 or 5 p. m., called Mr. Slaton on the telephone and told him I wouldn’t agree to the release of the mortgage. He said, ‘Well, if you won’t, I will try to get hold of Mr. Denman and have him wire the bank we won’t release.’ So the next morning, or a day or two after, I decided I would go down and investigate. The second wire appears to have been sent from Lubbock at 6:38 p. m., on the 26th of July. That was after we had had the conversation.
“I never talked to Mr. Slaton about releasing-the teams of Alexander before I signed the note. I did talk to him about the matter after I had signed the note and had learned that Alexander had moved to Big Spring. He said in that conversation that about all we could do was to let it run along until it was due, and we will have him come up and wilt just take some of the crop and try to secure it that way. Take a mortgage on the teams, implements, crop, everything he had, in order to secure it. I went to Big Spring to see Mr. Alexander after he had moved down there. He said for me not to worry about'the note; that when it came due, if he couldn’t pay it, that he would secure it so that I would be perfectly safe. He said he would secure it with a mortgage on the teams, implements, and plenty of other stuff. I have never received anything or any benefit from the signing of that note. It had cost me a lot of money.”

It will be seen from the above that the relation between Alexander and Mrs. Morris was that of principal and surety, and this status of Mrs. Morris was known to and understood by the plaintiff. The fact that the mortgage of the bank was released upon the work stock of Alexander in order that he might use them upon Mrs. Morris’ farm did not constitute her a principal on the note, in the absence of an express agreement that she would become a principal thereon. While the benefit anticipated by her, i. e., securing Alexander as a tenant on her farm, induced her to sign the note with Alexander, it did not have the effect to make her a principal, for as between her and Alexander, within the knowledge of the bank, Alexander was to pay the note and she was simply a surety to pay in the event he failed to do so. “Surety-ship, in its broadest sense, is the relation occupied by a person liable for the payment of money or for the performance of an act by another, such liability being collateral as to such' person, and who is liable to suffer loss in the event of the failure of such other person to pay or perform, but whose liability is terminated at once, fully and completely, if such other person does pay or perform.” 32 Oye. p. 14. “A surety, as we understand it, is a person who, being liable to pay a debt or perform an obligation, is entitled, if it is enforced against him, to be indemnified by some other person, who ought himself to have made payment or performed before the surety was compelled to do so.” Hall v. Johnston, 6 Tex. Civ. App. 110, 24 S. W. 861,

The consideration passing between the parties may be either of benefit to the principal or surety, or of detriment to the creditor. Baker v. Wahrmund, 5 Tex. Civ. App. 268, 23 S. W. 1023.

A party who has signed a note as surety for the other maker may avail himself of the protection which the law affords a surety, as against the creditor, where the latter has knowledge of the relation as surety, though that relation does not appear from the face of the instrument. Morris v. Booth (Tex. App.) 18 S. W. 639; Bank v. Skidmore (Tex. Civ. App.) 30 S. W. 564; Burke v. Cruger, 8 Tex. 66, 58 Am. Dec. 102; Kellogg v. Iron City National Bank (Tex. Civ. App.) 26 S. W. 856.

If a creditor, without the consent of the surety, parts with or renders unavailable any security or fund which he has a right to apply in satisfaction of the debt, the surety is exonerated or discharged to the extent of the value of such security or to the extent of the impairment of its value. Kempner v. Patrick, 43 Tex. Civ. App. 216, 95 S. W. 51.

In order that a surety may be discharged by reason of the depreciation of equitable rights or remedies, as by reason of the creditors releasing securities held by them, which would inure to the benefit of the surety, in that such security can be applied to. the payment of the debt, such suretyship must appear from the face of the contract or be known to the creditor. Burke v. Cru-ger, supra.

The appellant contends that the plaintiff’s mortgage being subject to a mortgage to the Big Spring Bank for about $1,000 and also subject to a mortgage to L. B. Wright for about $1,000, and also to secure Wright for advances for the year 1926 made by Wright to his tenant, OÍlie Alexander, and also to secure B. B. Wright for indorsements made by Wright for Alexander on notes to Hodges Bros., and that Wright had signed with Alexander a note for $467, payable to Hodges Bros., and one to the Big Spring Bank for $225, and the aggregate sum of all such indebtedness being $1,292.25, the court erred in submitting to the' jury as to what amount was due L. B. Wright on July 23, 1926, the time that Wasson' purchased the property, and the appellant released its mortgage, and that the appellant was therefore entitled to judgment against Mrs. Morris'for the amount sued 'for, less the sum of $125 tendered into court.

The recitals in the mortgages of indebtedness of $1,000 to the Big Spring Bank and the $1,000 indebtedness to Wright does not represent the real indebtedness to those parties. Wasson paid $1,524.50 for the property he purchased, which was subject to the three mortgages. This purchase money was paid out as follows: $824.50 to the Big Spring Bank; $467.11 to take up the L. B. Wright note; and $125 tendered to the First National Bank in Lubbock, $3.30 paid for incidentals in these transactions, and $104.59 paid to Alexander. These constituted all the debts secured by the three mortgages except the balance due and owing to the First National Bank in Lubbock, after being credited with $125 tendered into court,

The trial court submitted to the jury the question: What was the total value of the crops, the ten head of live stock, farming implements, and equipment purchased by, defendant Wasson' from Alexander at the time he bought same? To this question the jury answered: $1,750. The jury further found that Alexander did not on the 23d day of July, 1926, owe L. B. Wright anything.

These issues, as found by the jury are abundantly supported by the evidence. It appears therefore that the total indebtedness secured by the mortgages upon -Alexander’s property, to the State National Bank of Big Spring, amounted to $824.50, and, whether calculated as a debt owing to Wright or secured by Wright’s signature as surety thereto, the so-called Wright indebtedness amounted to $467.11. These two items aggregate $1,-291.61, and was .the total indebtedness due and owing to the Big Spring Bank and to Wright under their two mortgages. Of the amount received from Wasson, $104.59 was paid to Alexander. This sum was subject to the mortgage of the First National Bank in Lubbock. Therefore it was a distinct loss to Mrs. Morris.

The jury having found the value of this property as being $1,750, if we deduct the sum of $1,291.61 from that amount, it will leave .$458.39, which Should have been applied as a payment on the note of the plaintiff bank herein. This amount deducted from the face of the plaintiff’s note leaves $206.16.

We therefore reverse the judgment of the trial court and here render judgment in favor of plaintiff, the First National Bank in Lubbock and against Mrs. Lulu Morris, for the sum of $206.16, together with interest at the rate of 10 'per cent, per annum from November 8, 1926, fo this date, and 10 per cent, upon such amount and interest as attorney’s fees.
      <®=For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes .

      <§^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes-


author: HODGES, J.

text:
    McWHORTER et al. v. GRAY et al.
    (No. 3515.)
    Court of Civil Appeals of Texas. Texarkana.
    March 8, 1928.
    1. Courts <⅞=>472(4) — Power of district court to partition property does not interfere with exclusive original jurisdiction of county court over estates.
    Power of district court to partition property does not interfere with exclusive original jurisdiction of the county court to probate wills and determine whether or not administration on estate is necessary.
    2. Wills <§==>778 — Beneficiaries . may elect to disregard will and take as heirs under general law of inheritance.
    Persons interested in estate have right to have will probated and have property divided thereunder in administration proceeding in the county court or to disregard will and divide the property among themselves according to the law of descent and distribution.
    3. Wills 4⅝=>801 — Unprobated will cannot control division of property among devisees who repudiated will and elected to take as heirs.
    Will which has not been probated furnishes no evidence of title, and its provisions cannot control division of property, where devisees have agreed to take under general laws of inheritance.
    4. Wills <§==>801 — Devisees who elected to take as heirs held estopped to invoke jurisdiction of county court to probate will, where division in friendly partition suit proved unsatisfactory.
    Devisees under will, who agreed to abrogate will and take under law of descent and distribution, and who consented to institution of friendly partition suit, held estopped to invoke jurisdiction of county court to administer estate under will after disagreement arose as to manner of division of land, since their election to take property under law of intestacy precluded inconsistent claim as devisees.’
    5. Partition <S=>94(2) — Mere misunderstanding of heirs renouncing will as to manner of division of estate’s property held not to warrant disturbing division made in partition suit by institution of probate proceedings.
    Where heirs and devisees agreed to renounce will and take under general laws of inheritance, and to bring friendly partition suit for division of estate’s property, mere misunderstanding of some of the heirs as to how the land was to be divided held not to warrant disturbing division made in partition suit by institution of proceedings to probate will; proper remedy in qase of unjust or illegal division being to contest commissioner’s report in district court.
    Appeal from District Court, Hunt County; Grover Sellers, Judge.
    Suit by Raymond Gray and others against Mrs. Bettie McWhorter and others for an injunction. From a judgment for plaintiffs, defendants appeal.
    Affirmed.
    H. D. Davis and Truett & Neathery, all of McKinney, for appellants.
    Neyland & Neyland and Bowman & Bowman, all of Greenville, for appellees.
   HODGES, J.

This appeal is from a final judgment enjoining the appellants from probating the will of Mrs. Mary H. Gray, who died in Hunt county, Tex., during the year 1926. The will was dated October 8, 1923. At the time it was made Mrs. Gray had four living children, and two grandchildren, who were the children of a deceased son. The material portions of the will are as follows:

“Second: I give and begueath to each of my children, as follows: Bettie McQuirter, Mattie D. Ralph, W. E. Gray, and R. L. Gray an undivided one-fifth interest in all the property, real and personal and mixed wheresoever situated of which I may die seized and possessed.
“Third: I give and begueath to my two grandchildren, who are the only children of my son, A. N. Gray, deceased, to wit, Raymond •Gray and Marian Gray, jointly, an undivided one-fifth interest in and to all property, real, personal and mixed wheresoever situated of which I may die seized and possessed.
“Fourth: It is my will that my landed estate consisting of 215 acres about 2 miles west from Floyd in Hunt county, Texas, shall be divided among my children and grandchildren, and that the meadow of 35 acres on the south side of the old M. K. & T. Ry. be divided into five equal parts and that each of the children shall have one-fifth and the two grandchildren, Raymond Gray and Marian Gray, have the other one-fifth. It is also my desire that the land on the .north side of the railroad be divided by running the division lines north and south so as to give each one a frontage on the public road. It is further my desire that in making the division of the lands on the north side of the railroad that my daughter, Bettie McQuirter, have her part so as to include my residence, barn and premises which I now occupy.
“Fifth: I hereby constitute and appoint my son, W. E. Gray, sole executor of this will, and direct that no security be required of him as such.
“Sixth: It is my desire that said lands shall be divided among my children and grandchildren, as above set out, wi.th the distinct understanding that my son, W. E. Gray, in whom I repose implicit confidence, shall have the full power and authority to have said land surveyed' and to divide the same according to his idea and sense of justice in the premises; and when same is so surveyed; divided and plotted, and placed of record in the deed records of Hunt County, Texas, his duty in the premises shall be considered entirely performed in reference to said land.”

W. E. Gray, who was named as executor, died before the death of his mother. He left some children, who are parties to this proceeding. After the death of Mrs. Gray, R. B. Gray (another son) died, leaving a wife and children. In May, 1927, all the heirs by agreement instituted a friendly partition suit in the district court of the Sixty-Second judicial district of Hunt county. Raymond Gray, an adult grandchild, was named as defendant. All the other interested parties appeared as plaintiffs. Among them was one minor, Edwin Gray, who was represented by his guardian.

Among other facts, the petition alleged that Mrs. Gray left a written will in which her property was devised to her children and grandchildren in accordance with the law of descent and distribution; that there was no-indebtedness against the estate, and no necessity for an administration or for the probate of the will, for the reason that the will disposed of the property in the same manner as the heirs would take under the law of descent and distribution. ’

On May 17, 1927, the case was called for trial; and, there being no contest among the different claimants, the attorney representing the plaintiffs made a full statement of the material facts necessary to be proved in order to warrant a partition decree. After hearing that statement, the court entered the necessary partition order, and appointed commissioners to make a division of the land. The commissioners later divided the land among the different claimants, and made their report. It appeared, however, that in making the division the commissioners did not follow literally the directions contained in the will. Mrs. McWhorter and Mrs. Ralph and others objected to the report because those directions had not been followed. They contended that Mrs. McWhorter should have been allotted the home place, with the improvements, without considering the value of those improvements in estimating her portion of the property. Because of that disagreement among the heirs, the attorneys who had been representing them withdrew from the case. The appellants in this proceeding, consisting of Mrs. McWhorter, Mrs. Ralph, and some of the grandchildren, then employed as attorneys Mr. H. L. Davis and Messrs. Truett & Neathery. Through those attorneys they filed a motion to set aside the order of partition. On July 21, 1927, they filed an amended motion asking that the order of partition be set aside and the partition suit dismissed. In that motion they alleged the execution of the will by Mrs. Gray, and that an administration was necessary because of the existence of debts against the estate. They further alleged that there was a misunderstanding between them and the attorneys first employed regarding the manner in which the property was to be divided. That motion was made after the report of the commissioners had been filed, but before it was passed on by the court. The court heard and granted the amended motion on the day, it was filed. On the following day, however, in the absence of the appellant’s attorneys, he reconsidered that order, set it aside, and reinstated the case. It being then near the close of the term of that court, another order was entered transferring the case to the Eighth judicial district.

On July 23, 1927, the appellants, through their attorneys, Davis and Truett & Neathery, filed an application to probate the wll of Mrs. Gray, and caused notice to be given in the manner required by law. On July 30 following, Marian Gray, Marion Gray, Raymond Gray, and Mrs. Anna Davis, the appellees in this proceeding, filed their petition in the district court of the Eighth judicial district for a writ of injunction to restrain the appellants, their attorneys, and the county judge of Hunt county, from proceeding further in the probate proceedings. The application for the injunction alleged, in' substance, 'the execution of the will by Mrs. Gray, but that the heirs had agreed that the will should be abrogated and not probated; that they had also agreed that there was no indebtedness against the estate, and no necessity for an administration, and had further agreed that a partition suit should be brought in, the district court of Hunt county to divide the property in accordance with the law of descent and distribution ; that such suit was brought, and a judgment therein had been rendered ordering the partition. The petition for the injunction was presented to Hon. Grover Sellers, judge of the Eighth judicial district, on the day it was filed. A temporary order was made granting the injunction prayed for. On the same day the appellees applied for a receiver, who was thereafter appointed and took charge of the property pending the litigation.

On November 23, 1927, the appellants filed their motion to dissolve the writ of injunction and to set aside the decree of partition entered on the 17th day of May, to abate and dismiss the cause, and to discharge the receiver. That motion was heard on November 25,1927, during a term of the court. The motion was overruled, and the injunction abated as to the county judge of Hunt county, but made permanent as to the other parties. The court also approved the report of the commissioners of partition, and continued the receiver in charge of the property pending further litigation. This appeal seems to be from that portion of the judgment which permanently enjoined the appellants and their attorneys from proceeding with their application to probate the will of Mrs. Gray.

The parties to this suit have apparently treated the issuance of the injunction as a proceeding ancillary to the main controversy. No complaint is here made of the decree awarding the partition and the order approving the report of the commissioners. In the discussion of the issues presented in this appeal, we shall treat the decree of partition ■made in the district court as final. It is well settled that the power of the district court to partition property does not interfere with the exclusive original jurisdiction of the county court to probate wills and determine whether or not an administration upon an estate is necessary. Franks v. Chapman, 61 Tex. 576; Van Grinderbeck v. Lewis (Tex. Civ. App.) 204 S. W. 1042; Buchner v. Wait (Tex. Civ. App.) 137 S. W. 383. But in this case the injunction is defended upon the ground that the appellants are estopped to invoke the jurisdiction of the probate court, by reason of the proceedings which they and the other heirs had instituted in the district court of the Sixty-Second judicial district.

After the death of Mrs. Gray, her children and grandchildren, being the only parties interested in her estate, had the right to probate her will and have the property divided in an administration proceeding in the county court, or they could disregard the will and divide the property among themselves according to the law of descent and distribution. Stringfellow v. Early, 15 Tex. Civ. App. 597, 40 S. W. 871; Fore v. McFadden (Tex. Civ. App.) 276 S. W. 327. In other words, they could take the property as devisees under the will, or as heirs under the general law of inheritance. All of them elected to adopt the latter remedy and take the property as heirs. In pursuance of that election, a friendly suit was filed in the district court, and a decree of partition was rendered awarding to the different heirs the interests they claimed, and to which they were entitled under the law .of descent and distribution. Commissioners were appointed and directed to make a division of the property into five equal parts according to value. No objection was made to that decree, and none of the parties interested was denied an opportunity to ascertain its terms and legal effect. No dissatisfaction arose until the commissioners began to make an actual division of the land. The objections then made resulted in a contest of the report on the ground that the portion of the land on which the family residence was located had not been allotted to Mrs. McWhorter, one of the appellants. Mrs. McWhorter'and other heirs who are the appellants in this proceeding insisted that she was entitled to have that portion of the land set apart to her without taking the value of the improvements into consideration. They based that claim upon the language of the will and what they alleged was the understanding at the time they agreed to the partition suit. They claimed that Mrs. McWhorter was entitled to that preference because of services rendered by her during the last illness of their mother. As has been stated, those objections to the report, as well as the motion made to set aside the decree of partition and dismiss the case, were overruled, and the controversy they presented has been finally disposed of. The evident purpose of the application to probate the will was to have a different division of the property from that made in the partition suit.

Having submitted the matter of partition to the district court, all of the heirs were bound by its judgment, subject to such corrections as might be made on appeal. The will, not having been probated, furnished no evidence of title, and its provisions could not control the division of the property in that court. The appellants, with the other heirs, made their election as to how they would take the property when they filed their partition •• suit in the district court, and they cannot now establish an inconsistent claim as devisees under the will which would lead to different results. Having elected one remedy, they are estopped to now pursue another which is inconsistent with the one first adopted. Ward V. Green, 88 Tex. 177, 30 S. W. 864; Cameron V. Hinton, 92 Tex. 492, 49 S. W. 1047. There is no evidence of fraud in securing the agreement to proceed in the district court, or in the division of the land. A mere misunderstanding of some of the heirs as to how the land should be divided is no reason for allowing them to later institute a proceeding which would disturb the division of the property made in the partition suit. Certainly they would have no cause for complaint if the partition were fairly made in the district court in accordance with the appropriate provisions of law. If the commissioners had not made a just and legal division, the dissatisfied parties had the right to contest the report in the district court.

The judgment will be affirmed.
      <S=5Por other eases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


author: PUNDERBURK, J.

text:
    THOMASON v. SHERRILL et al.
    (No. 405.)
    Court of Civil Appeals of Texas. Eastland.
    Feb. 24, 1928.
    Rehearing Denied March 23, 1928.
    1. Dismissal and nonsuit <@=ol9(l) — Statutory provision that plaintiff’s nonsuit shall not prejudice adverse party’s claim for affirmative relief is not restriction on right to nonsuit but prohibition against prejudicing claim for affirmative relief (Rev. St. 1925, art. 2182).
    Provision in Rev. St. 1925, art. 2182, that plaintiff may dismiss, if same shall not thereby prejudice right of an adverse party to be heard on his claim for affirmative relief, is not intended as restriction upon or limitation of right to take nonsuit, but is simply prohibition against exercise of that right having any prejudicial effect on defendant’s claim for affirmative relief.
    2. Appeal and error <@=>66 — In absence of statute, finality is essential characteristic of ap-pealable order, judgment, or decree.
    In absence of special statutory provisions to contrary, one of most essential characteristics of' an appealable order, judgment, or decree is finality.

      3. Appeal and error <⅜»76(1) — - Defendant may not appeal from order not affecting right, since it is not “final judgment” of which he may complain.
    If no right of defendant is affected by order, it is not “final judgment” within terms of his right to complain of it upon appeal.
    [Ed. Note. — Eor other definitions, see Words and Phrases, Pirst and Second Series, Pinal Decree or Judgment.]
    4. Appeal and error <S=>76(I) — “Final judgment,” giving rise to right to appeal, is one wherein whole subject-matter In controversy is disposed of.
    Pinal judgment, such as gives rise to right to invoke jurisdiction of appellate court, is one in which whole subject-matter in controversy is disposed of.
    5. Appeal and error <3=»78(4)— Plaintiff’s order of dismissal held not final determination giving defendant right of appeal.
    Where plaintiff secured order of dismissal, and defendant appealed from such order on ground that right asserted by him in answer was not determined, held that there was no final determination of defendant’s rights, giving him right of appeal.
    6. Appeal and error <⅜=>78(4) — Court of Civil Appeals held without jurisdiction to review on appeal order refusing' to reinstate case after dismissal by plaintiff and purported adjudication that defendant’s pleadings did not set up cross-action.
    Where order and judgment appealed from as described in notice of appeal and appeal bond was refusal of court to reinstate case after plaintiff had secured dismissal and of purported finding and adjudication that defendant’s pleading did not set up cross-action, held, order being in no sense final judgment or order, that Court of Civil Appeals was without jurisdiction to hear ease.
    Appeal from District Court/ Haskell County ; Bruce W. Bryant, Judge.
    Suit by R. E. Sherrill and another, as executors of the estate of W. A. Black, against G. W. Thomason and others. Case dismissed. Prom an order refusing to set aside dismissal and reinstate the case, defendant named appeals.
    Dismissed.
    G. W. Thomason, of Haskell, for appellant.
    H. R. Jones and Murchison & Davis, all of Haskell, for appellees.
   PUNDERBURK, J.

R. E. Sherrill and R. O. Montgomery, executors of the estate of W. A. Black, brought this suit in trespass to try title against G. W. Thomason et al. Defendant Thomason answered, among other things to the effect that the deceased, W. A. Black, was indebted to one J. O. Poe and wife for certain .services rendered, to the aggregate value of the land; that one-half of said account or claim had been transferred to the defendant; that prior to his death Black had placed said Poe and wife in possession of the premises; and that the indebtedness due by Black to Poe and wife, one-half of which had been transferred to the defendant, was a valid, subsisting, and established claim, indebtedness, and a lien upon the land. The prayer of the answer was that “plaintiffs take nothing by virtue of their suit,” including a prayer “for general and special relief, such as he is entitled to under law and equity and for costs of suit.”

On April 19, 1927, the court entered an order as follows:

“This the 19th day of April, 1927, came the plaintiffs and say they will no longer prosecute their said suit. It is therefore considered and ordered by the court that this be dismissed and that all costs are adjudged against the plaintiffs, for which execution may issue.”

On April 25, 1927, Thomason filed a motion, asking the court to set aside the order of dismissal noted above and to reinstate the cause on the ground that defendant had previously filed a cross-action setting up affirmative relief. Plaintiffs demurred to the motion, and on May 20, 1927, the court overruled the demurrer to the motion but held that defendant’s answer did hot set up a cross-action as against the plaintiff, for which reason alone the motion to set aside the order of dismissal and to reinstate the case was overruled. Defendant Thomason excepted to this order of the court, and gave notice of appeal. Thereafter an appeal bond was filed, which describes the order or judgment appealed from as follows:

“On the 20th day of May, A. D. 1927, the said R. E. Sherrill and R. C. Montgomery, executors, recovered judgment against the said G. W. Thomason that the pleadings in this case do not set up a cross-action as against the plaintiffs, and that his motion to set aside the order and judgment dismissing plaintiffs’ suit in this case be in all things overruled and the plaintiffs be permitted to take a nonsuit, and plaintiffs’ suit be not reinstated on the docket of the court, which judgment is here referred to and made a part hereof for full statement of same.”

The first question to be determined is one of jurisdiction. It is not assigned, but arises from an inspection of the record. In quite a number of decisions of the courts of this state there are found expressions and implications that deny the right of the plaintiff to bake a nonsuit in cases where the defendant has filed a cross-action or counterclaim seeking affirmative relief against the plaintiff. Revised Statute 1925, art. 2182, dealing with the subject of nonsuit, is as follows:

“At any time before the jury has retired, the plaintiff may take a nonsuit, but he shall not-thereby prejudice the right of an adverse party to be heard on his claim for affirmative relief. When the case is tried by the judge, such nonsuit may be taken at any time before tbe decision is announced.”

From tbe terms of tbe statute itself, tbe only limitation of tbe right to take a non-suit is that in cases tried by a jury tbe same shall be claimed before tbe jury has retired, and in cases tried by the judge, such right shall be claimed before the decision is announced. Tbe provision that the plaintiff “shall not thereby prejudice tbe right of an adverse party to be beard on his claim for affirmative relief” is not intended, we think, as a restriction upon or limitation of, the right to take a nonsuit, but is simply a prohibition against tbe exercise of that right having any prejudicial effect upon tbe defendant’s claim for affirmative relief. If a case should arise where prejudice to tbe defendant could not be prevented except by denying tbe right of plaintiff to take a nonsuit, tbe denial of such right would be mandatory. We cannot, however, well see bow such a condition could exist. It has already been decided that, in order not to prejudice the defendant’s claim, tbe plaintiff’s pleading may be looked to in aid of defects in defendant’s pleadings. Jones v. Wagner (Tex. Civ. App.) 141 S. W. 280.

It has also been determined that plaintiff cannot, after nonsuit, claim 'the privilege to be sued in tbe county of bis residence upon tbe claim asserted by tbe defendant. Bailey v. Federal Supply Oo. (Tex. Com. App.) 287 S. W. 1090.

If both plaintiff and defendant, in their respective ' claims against each other, seek 'to litigate tbe same matter, tbe plaintiff cannot by nonsuit thereby withdraw such matter from tbe litigation. Short v. Hepburn, 89 Tex. 622, 35 S. W. 1056.

These decisions are but examples showing bow tbe courts give effect to tbe statutory requirement that a nonsuit shall not be permitted to prejudice the claim of a defendant seeking affirmative relief. We find ourselves unable to imagine a case where in some such way as above illustrated prejudice to the defendant from a nonsuit may not be effectually prevented without any restriction on tbe right of tbe plaintiff to take a nonsuit. We construe tbe later decisions on this question to fully sustain this view. Then what right has a defendant in a suit wherein, by cross-action or counterclaim, be seeks affirmative relief against plaintiff, to prosecute bis appeal from an order dismissing tbe plaintiff’s suit but which order in no wise purports to affect tbe defendant’s right to continue tbe prosecution of bis cross-action or counterclaim? If tbe right of a plaintiff to take a nonsuit is an absolute one in a jury case, if claimed before tbe jury retires, orin a case tried by a judge before tbe decision is announced, and tbe court is prohibited from permitting such non-suit to prejudice tbe claim asserted by tbe defendant, then, if tbe court in its order dismissing the plaintiff’s suit does not purport to dismiss or affect tbe counterclaim or cross-action, there is no reason to impute to tbe court an intention to do so. In Bailey v. Federal Supply Co., tbe Commission of Appeals, in an opinion expressly approved by tbe Supreme Court, has bad occasion to pass upon the effect of an order of dismissal, reading as follows:

“On this 17th day of December, 1924, upon request of plaintiff herein, it is ordered, adjudged, and decreed by the court that the above .numbered and entitled cause be, and same is hereby, dismissed, at plaintiff’s cost, for which execution may issue.”

It will be observed that this order is almost exactly like tbe one under consideration, but tbe court held that such order evidenced no intention of dismissing a cross-action of the defendant against tbe plaintiff, and did not have such effect. If other authority than tbe statute itself were required, we consider this decision as settling tbe question.

In the absence of special statutory provision to tbe contrary, one of the most essential characteristics of an appealable order, judgment, or decree is finality. It is axiomatic that, if no right of tbe defendant is affected by an order, it is not a final judgment within tbe terms of bis right to complain of it upon appeal. A final judgment such as gives rise to tbe right to invoke tbe jurisdiction of an appellate court is one wherein tbe whole subject-matter in controversy is disposed of.

Havard v. Carter-Kelley Lumber Co. (Tex. Civ. App.) 162 S. W. 922; Wright v. Chandler (Tex. Civ. App.) 173 S. W. 1173.

So we conclude that, regardless of whether appellant’s pleading in tbe court below set up only defensive matters or sought affirmative relief, and considering tbe order of dismissal as tbe one attempted to be revised on this appeal which, as hereafter shown, we think it is not, there was no such final determination of any of bis rights as gave him tbe right of appeal If the answer did not seek affirmative relief, then ‘the right of plaintiff to have tbe entire ease dismissed is so complete that there could exist no re-dressable wrong to appellant from an exercise thereof. On tbe other band, if tbe answer of defendant sought affirmative relief so as not properiy to be affected by plaintiff’s nonsuit, then, so far as tbe record before us shows, bis action may still be pending in tbe trial court.

What has been said upon this point is based upon a consideration of tbe order dismissing the case in response to plaintiff’s nonsuit as being tbe judgment appealed from, but it will be observed from tbe foregoing statement that appellant does not complain of the order dismissing the case. The action complained of is tbe refusal of tbe court, to reinstate tbe case and of a purported finding and adjudication that defendant’s pleadings do not set up a cross-action as against the plaintiff. That such is the action of the trial court appealed from is abundantly shown by the notice of appeal, the appeal bond, which the law requires shall describe the judgment appealed from, the assignments of errors,.and from all of the contentions set out in appellant’s brief. 'If appellant had had any right to complain of the order dismissing plaintiff’s suit, which is the only order in the record having any of the characteristics of a final judgment, it is made clear by the record and particularly by the description of the judgment in his appeal bond that ■he is not attempting to do so. First National Bank v. J. I. Campbell Co. (Tex. Civ. App.) 133 S. W. 311; Scaling Oil Co. v. Head (Tex. Civ. App.) 241 S. W. 767; Cooper v. Lynch (Tex. Civ. App.) 241 S. W. 769.

For the additional reason then] that the order and judgment actually attempted to be appealed from as described in the notice of appeal and appeal bond is in no sense a final judgment or order of the court, we cannot escape the conclusion that we are without jurisdiction to hear the case. Being without jurisdiction, we can, of course, make no authoritative determination of the question whether appellant’s answer did or did not, by way of cross-action or counterclaim, seek affirmative relief against appellees. There may be some question as to the propriety of our indicating our views on this question. Lest, however, that what we have said may be construed as a suggestion to appellant that he still may have the right to prosecute his claim against appellees, we feel it may not be amiss to say that we think appellant’s answer did not allege a counterclaim or cross-action seeking affirmative relief. The appeal will be dismissed; but the costs of the appeal will be adjudged against appellant.

Dismissed.
      @=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      sg^For ether cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    LOWRIE v. CAMPBELL LUMBER CO. et al.
    (No. 2129.)
    Court of Civil Appeals of Texas. El Paso.
    March 15, 1928.
    Rehearing Denied April 5, 1928.
    I.Mortgages <§=>25(5) — Mortgagee’s failure to advance entire amount covered by deed ■ of trust held not to invalidate contract, but simply rendered it unenforceable to extent of such failure.
    Where plaintiff agreed to lend $28,000 to defendant for completion of apartment house on defendant’s note secured by deed of trust, which were delivered, but because of controversy arising out of defendant’s failure to erect garage on mortgaged lot plaintiff advanced only $25,600 and refused to advance balance, held ■ that there was a partial failure of consideration which did not invalidate contract evidenced by •note and deed of trust, but simply rendered it unenforceable to extent of ■ such failure, as against defendant’s' contention that plaintiff could recover only amount actually advanced on quantum meruit.
    2. Cancellation of instruments <§=>24(2)— Mortgagor desiring to rescind contract evidenced by note and deed of trust must restore or tender amount received.
    If mortgagor desired to rescind contract evidenced by note secured by deed of trust because of mortgagee’s failure to advance entire amount for which such instruments were given, it was incumbent on him to restore or tender the amount of money actually advanced.
    3. Mortgages <§=>25 (6) — Exclusion of evidence that mortgagee’s agents understood garage was not to be built on mortgaged lot held not error.
    Where plaintiff agreed to lend $28,000 to defendant for completion of apartment house on defendant’s note secured by deed of trust, which were delivered, but because of controversy arising out of defendant’s failure to erect garage on mortgaged lot plaintiff advanced only $25,600 and refused to advance balance, exclusion of defendant’s evidence that plaintiff’s agents knew and understood that garage was not to be built on said lot held not error, since it related to issue of partial failure of consideration for which defendant mortgagor had received full credit on mortgage.
    Appeal from District Court, Bexar County; Robt. W. B. Terrell, Judge.
    Suit by the Campbell Lumber Company and others against C. R. Lowrie, in which the Mortgage Bond Company’ of New York and others intervened. From an adverse judgment, defendant appeals.
    Affirmed.
    W. M. Groce and J. B. Lewright, both of San Antonio, for appellant.
    Church, Lawley & Graves, Terrell, Davis, Huff. & McMillan, and Cunningham, Mour-sund & Johnson, all of San Antonio, for ap-pellees.
   HIGGINS, J.

The Campbell Lumber Company and others brought this suit against appellant, Lowrie, to recover debts due each of them for materials used in the cónstruction of an apartment house in the city of San Antonio; to establish and foreclose statutory materialmen’s liens upon the house and lot. A receiver of the property was appointed as prayed for. Later various other parties intervened, among them being the Mortgage Bond Company of New York, hereinafter referred to as the bond company, or as ap-pellee.

The original plaintiffs and interveners, other than the bond company, need not be further noticed. No question is here presented concerning tie judgment as it affects tie ■otier parties. Tie controversy iere affects only tie iond company and Lowrie.

Tie iond company declared upon a note of Lowrie and deed of trust securing tie note. Tie note was dated January 20, 1925, in tie principal sum of $28,000, to tie order of ap-pellee, payable in installments, witi 7 per cent, interest coupons attacied. Tie note contains tie usual accelerating maturity clause in case of default in tie payment of interest and tie usual attorney’s fee clause of 10 per cent.; also provides for 10 per cent, interest after maturity. Default in tie payment of interest was alleged and tie exercise of tie option to mature. Tie deed of trust bore even date witi tie note and covered tie premises upon wiici tie iouse was situate. A credit of $2,400 upon tie principal was admitted in tie petition; also payment of certain of tie interest coupons.

Judgment was sougit for tie principal sum of $25,600, witi interest, attorney’s fees, and foreclosure of deed of trust.

In addition to a general denial and homestead plea, wiici was decided against iim and as to wiici no question is iere raised, Lowrie answered by lengtby special plea, wiici may be summarized as follows; He admitted ie signed and delivered tie note and deed of trust, but alleged same was not binding upon or effective against iim because same was a. part of an entire transaction and contract in tiis: Prior to January 20, 1925, defendant was constructing tie apartment iouse; before said date he applied to appel-lee through its agent, Leonard-Hensley-Starkey Company of San Antonio, for a loan upon tie premises for the purpose of paying debts incurred in tie partial construction of tie building and completing same; appellee and its agents agreed to lend iim $28,000 for such purpose, and defendant accepted said offer; “it was agreed that said $28,000 should be advanced as needed for the purpose aforesaid ;” it was agreed that tie note and deed of trust should be executed and delivered, but witi tie understanding and agreement that tie. same should not “take final effect and become binding upon” defendant until tie entire $28,000 was advanced; said iouse was completed, but appellee had advanced only $25,600, wherefore tie note and deed of trust bas not become effective and binding upon 'defendants; same are null and void, and tie bond company is precluded and estopped from claiming a lien, and can recover, if at all, only $25,600 “as upon a quantum meruit, upon open account as for money had and received.”

A peremptory charge was given in favor of tie appellee for $25,600, witi interest and attorney’s fees, as prayed for, in accordance witi wiici verdict was returned and judgment rendered.

. Tie evidence does not raise an issue of conditional delivery of tie note and deed of trust as by tie defendant alleged. Eor tiis reason those propositions are overruled wiici proceed upon tie theory that tie note and deed of trust were not to become binding upon and effective against appellant, until' tie entire $28,000 was advanced.

In view of the admitted signing and delivery of tie instruments it may be doubted whether any condition inconsistent with their terms could be ingrafted thereon by parol evidence, in tie absence of fraud or mistake. Holt v. Gordon, 107 Tex. 137, 174 8. W. 1097.

Otier propositions assert that because of the failure to advance tie balance of $2,-400 as agreed, appellee cannot maintain suit upon tie note and deed of trust, but can recover only tie money actually advanced; that appellee hás not substantially performed its agreement to advance $28,000, for wiici reason it can recover only on a quantum meruit or implied contract. The failure to make the final advance grew out of a disagreement between tie parties arising out of the failure of appellant to build an eight-stall garage upon tie premises; appellee contending that it was a part of tie improvements agreed to be placed upon tie lot. Appellant contends that appellee’s agents knew such garage was not to be built upon the land.

As we view tie matter, it makes no difference which party was correct in that controversy. Admitting tie garage was not a part of the improvements contemplated to be built and covered by tie lien, tie failure of appel-lee to make tie final advance of $2,400 presents only a question of partial failure of consideration, wiici was admitted by appel-lee and for which appellant received credit. This partial failure of consideration does not invalidate tie contract evidenced by the note and "deed of trust. It simply rendered the same unenforceable to tie extent of the failure. 3 R. C. L. Bills and Notes, § 142; 41 G. J. Mortgages, § 210; Joyce, Defenses to Commercial Paper, §§ 343, 349; Williams v. Finley, 99 Tex. 469, 90 S. W. 1087; Coleman v. Galbreath, 53 Miss. 303; Watts v. Bonner, 66 Miss. 629, 6 So. 187.

If appellant desired to rescind tie contract evidenced by tie note and deed of trust, and thus defeat the same, it was incumbent upon iim to restore or tender tie $25,600 actually advanced. 8 C. J. Bills .and Notes, §§ 1008, 1205, p. 922. This he did not do.

Evidence was excluded tending to show that appellants agents knew and understood tie garage was not to be built upon tie lot. Tiis matter presents no error, for if admitted it would not have affected tie right of appellant arising out of tie failure to advance the balance of $2,400. Tie evidence relates to the issue of partial failure of consideration, and appellant received full credit for such failure.

It is further contended tie court.erred:

(1) In allowing interest at the rate of 10 per cent, per annum from the' accelerated maturity date, it being asserted that the provision in the note allowing interest at the rate of 10 per cent, per annum from maturity did not apply to such accelerated maturity. (2) In allowing recovery upon past-due interest coupons because the petition did not declare thereon and was insufficient to support recovery of the interest represented by such coupons.

Upon examination of the provision of the note relating to 10 per cent, interest after maturity, and the allegations of the petition, we regard these objections as untenable.

Affirmed.
      <§=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BARCUS, J.

text:
    CURRIE et al. v. HOLT.
    (No. 628.)
    Court of Civil Appeals of Texas. Waco.
    March 1, 1928.
    Rehearing Denied March 29, 1928.
    1. Bills and notes <⅝=525 — Evidence held to support finding that plaintiff, when purchasing note sued on, was not put on inquiry as to its validity.
    In action on note, evidence held sufficient to support finding that plaintiff, when' purchasing note before maturity for valuable consideration, had no knowledge of facts which would put him on inquiry as to its validity; there being no evidence to show that he knew condition of filling station covered by mortgage securing note, or that note was given for completed filling station.
    2. Bills and notes @=>537(6) — In action on note, evidence held insufficient to take to jury question of plaintiff’s good faith in trading for note sued on.
    In action on note by one who purchased it before maturity for valuable consideration without notice of any defect or infirmity, evidence held insufficient to take to jury issue whether-plaintiff in good faith traded for note sued on.
    3. Bills and notes <⅜=376 — Failure of consider-' ation for note as between original parties will not bar recovery by holder in due course.
    Where plaintiff, in action on note, was holder in good faith before maturity in due course, without notice of any infirmity, he was entitled to recover, regardless of whether consideration for note had failed as between original parties.
    Appeal from Dallas County Court; Paine D. Bush, Judge.
    Action by I. P. Holt against J. W. Currie and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    George Sergeant and Coombes & Coombes, all of Dallas, for appellants.
    Burgess, Owsley, Storey & Stewart and Knox W. Sherrill, ¿11 of Dallas, for appellee.
   BARCUS, J.

On November 26,1924, Harry Grant sold to J. W. Currie a gasoline filling station which was to be built in the city of Dallas, and in part payment therefor appellant J. W. Currie executed a note for $787.-44, which was signed by appellant J. B. Pinks as surety. The note was payable $25 per month, beginning June 1, 1925, and, by agreement of all parties at the time, was made payable to W. M. Perry; it being understood, however, that Harry Grant was the real owner thereof. On March 24, 1925,' Harry Grant sold the note to appellee for a valuable consideration and same was without recourse transferred to appellee by W. M. Perry. There is a credit on the note for $150, and this suit was instituted by appel-lee against Currie and Pinks to recover the unpaid portion thereof. The cause was tried to a jury, submitted on special issues, and resulted in a judgment being rendered in favor of appellee.

Appellants defended , the suit on the ground that the consideration for which the note was executed had failed, in that it was given in part payment for a gasoline filling station to be built and completed by February (1, 1925, and that Harry Grant had failed to complete same, in that one of the pumps was not properly installed and the air compressor and air and water lines were not installed, and appellants contend that appel-lee at the time he purchased the note knew said fact, or was charged with notice of such fact as would put an ordinarily prudent man on inquiry. Appellants also contended that the note had been placed in escrow at the time same was executed and that it had been delivered by the escrow holder without any authority. The jury found that the note was not put up in escrow and appellants do not contend that the finding of the jury on said issue is not supported by the evidence. The record shows without dispute that ap-pellee purchased the note before maturity and paid a valuable consideration therefor, and that at said time he had no actual knowledge of any defect or infirmity in same. Appellants contend that appellee, at -the time he purchased the note, had knowledge of such facts as would put an ordinarily prudent man on inquiry with reference to the validity thereof. In answer to a special issue submitted by the trial court the jury found that, under all the facts and circumstances surrounding the purchase of the note by appel-lee, a man of ordinary prudence would not have inquired of the makers thereof whether the same was a valid obligation before he purchased it. Appellants contend that this finding is not supported by the evidence. We overrule this contention. The evidence abundantly supports the finding of the jury. There is no evidence which in any way tends to show that appellee knew that Harry Grant sold a completed filling station to Currie as part of the consideration for the note. The note was secured by a mortgage on the filling station, but neither the note nor the mortgage in any way revealed the condition of nor what the filling station embraced. The record shows appellant Currie took possession of the filling station in February, 1925, paid the rent for said month, and kept possession and operated same until he was dispossessed by court proceedings for failure to pay the rent.

Appellants complain of the action of the trial court in refusing to submit to the jury the issue as to whether appellee in good faith traded for the note sued upon. We overrule this contention. There was no evidence raising the issue of good faith. It is shown by the record that appellee did not know anything about the transaction between appellants and Harry Grant, and there was nothing about the entire transaction to arouse his suspicions with reference to any invalidity or infirmity in the note.

Appellants complain of the findings of the jury with reference to whether the consideration given for the note had failed. We overrule these assignments. Since appellee was a holder of the note in good faith before maturity in due course, without notice of any infirmity, he was entitled to recover, regardless of whether the consideration for the note had failed as between appellants and Harry Grant, and said findings, therefore, become immaterial.

We have examined all of appellants’ propositions and assignments of error, and same are overruled.

The judgment of the trial court is affirmed.
      <§=For other oases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes