Blair v. Breeding

• Decision Date: 12 June 1909
• Citation: 121 S.W. 869
• Parties: BLAIR v. BREEDING et al.
• Court: Texas Court of Appeals

121 S.W. 869

BLAIR v. BREEDING et al.

Court of Civil Appeals of Texas.

June 12, 1909.

On Motion for Rehearing, October 13, 1909.

Appeal from District Court, Liberty County; L. B. Hightower, Judge.

Action by Eddie Breeding and husband against F. M. Blair and others. Judgment for plaintiffs, and defendant Blair appeals. Affirmed.

Stevens & Pickett, for appellant. Marshall & Marshall, for appellees.

McMEANS, J.

Eddie Breeding, joined by her husband, R. E. Breeding, brought this suit for herself and as next friend for Whitfield P. Murphy, a minor, against F. M. Blair, upon four promissory notes, aggregating $800, with interest thereon at the rate of 8 per cent. per annum from December 8, 1904, and for attorney's fees, and to foreclose a mortgage on land in Liberty county, given to secure the payment of said notes. Upon an allegation of plaintiffs' petition that W. F. Blair, the C. R. Cummings Lumber Company, and C. R. Cummings Export Company were cutting and removing the timber, saw logs, and other natural growth from the mortgaged land, whereby the land was being greatly injured and depreciated in value, these parties were made defendants to the suit. The defendants answered by general denial, and defendant F. M. Blair pleaded certain defensive matter which is immaterial to any issue raised by the assignments of error and need not be set out. The case was tried by the court without a jury, and a judgment rendered in favor of the plaintiffs against F. M. Blair for the amount of the principal and interest of said notes and for attorney's fees, and against all said defendants foreclosing the mortgage lien on said land. From this judgment, the defendant F. M. Blair alone has appealed.

The evidence shows that the notes and mortgage were held by William P. Murphy, who was the father of the minor, Whitfield P. Murphy, and the former husband of the plaintiff, Eddie Breeding, and that the same were the community property of said William P. Murphy and his said wife. Murphy died, and his widow, the said Eddie, married the plaintiff, R. E. Breeding, who joins her in this suit. The mortgage was not entitled to registration, because not acknowledged; but it was in fact recorded in the record of mortgages, etc., of Liberty county. After being so recorded it was lost, and although diligent search for it was made it could not be found. A certified copy of the mortgage, taken from the record, after proof of loss of the original was made, was offered in evidence. This was objected to on the ground that the mortgage was not proven in the manner prescribed by law. The plaintiffs then undertook to prove, by Mrs. Eddie Breeding, the execution of the mortgage by F. M. Blair, and she was permitted, over the objections of defendants, to testify that she was present when the transaction between William P. Murphy, her former husband, and Blair occurred, and saw Blair sign and execute the notes and mortgage sued upon. She identified copy offered as a true copy of the mortgage she saw Blair execute, and testified that the original came into her possession after Murphy died.

Appellant's first assignment of error complains that the court erred in permitting Mrs. Breeding to testify to the matters above set out, on the ground that "it appeared that she was the widow of William P. Murphy, deceased, and that she was an heir and legal representative of the estate of the said William Murphy, and was interested, as such heir and legal representative, in the transaction inquired about between her said deceased husband, William Murphy, and F. M. Blair, and that she was not a competent witness to testify to said transaction." The mortgage was alleged to have been executed by F. M. Blair. There being no plea of non est factum, no proof of execution was necessary as to him. Rev. St. 1895, art. 1265; Chator v. Brunswick, etc., Co., 71 Tex. 590, 10 S. W. 250; Fisher v. Bowser, 1 Posey, Unrep. Cas. 346. The original mortgage was admissible in evidence as against F. M. Blair without proof of its execution; and, the original having been lost, secondary evidence was admissible to prove its contents. The most satisfactory evidence of this character was a copy of the original mortgage. Admission of the testimony of Mrs. Breeding that the copy offered was identical with the original, which came into her possession after Murphy's death and which was subsequently lost, was admissible as identifying it as a true copy of the original, and was not in contravention of the provisions of article 2302, Rev. St....