Boettcher v. Federal Land Bank of Houston, 11020.
| Decision Date | 06 June 1940 |
| Docket Number | No. 11020.,11020. |
| Citation | 142 S.W.2d 272 |
| Parties | BOETTCHER v. FEDERAL LAND BANK OF HOUSTON. |
| Court | Texas Court of Appeals |
Appeal from District Court, Harris County.
Action on a note and for foreclosure of a deed of trust lien by the Federal Land Bank of Houston against O. H. Miller and another. From a judgment overruling a plea of privilege, E. Boettcher appeals.
Affirmed.
T. J. Stovall, of Houston, for appellant.
Carl Runge and J. V. Wheat, both of Houston, for appellee.
This is an appeal from an order overruling a plea of privilege in an action brought in the district court of Harris County by appellee, the Federal Land Bank of Houston, against O. H. Miller and E. Boettcher to recover upon a promissory note, for a foreclosure of a deed of trust lien on certain land, and to have the value of timber alleged to have been cut and removed from said land applied on its judgment.
Appellant Boettcher filed a plea of privilege to be sued in Walker County, the county of his residence, or in the alternative to have the case removed to San Jacinto County, where the land in question was situated.
Defendant Miller resided in Walker County. He did not file a plea of privilege.
Appellee filed a controverting plea in which it was alleged that its note was payable and its deed of trust was performable in Harris County; that appellant Boettcher, who claimed some interest in said land, had cut and removed standing timber from said land which was subject to appellee's deed of trust, and that since the district court of Harris County had venue of the action to foreclose said deed of trust lien as against all parties it also had venue of the incidental action of conversion.
In answer to appellee's controverting plea appellant disclaimed all interest in the land in question and alleged that appellee's allegations of venue facts were fraudulently made to fix venue in Harris County.
On a hearing before the court an order was entered overruling appellant's plea of privilege and directing that venue of the suit be retained in the district court of Harris County. Appellant appeals from this order.
It was agreed that appellant was a resident of Walker County, Texas, and that he had cut and removed at least 281,454 feet of timber from said land.
The record shows that W. A. Thompson and wife had executed and delivered to appellee their note for $3,200 secured by a deed of trust on eight tracts of land situated in San Jacinto County, Texas; that said note was payable in Houston, Harris County, Texas, and that said deed of trust was enforceable there. Thompson and wife conveyed the land in question to O. H. Miller, who assumed the payment of said note according to its terms and the terms of said deed of trust. By instrument dated October 29, 1938, and recorded in San Jacinto County on July 28, 1939, O. H. Miller and wife conveyed the standing timber on said land to appellant E. Boettcher. This suit was filed on August 7, 1939.
Appellee relies on Subdivisions 5 and 29a of Article 1995, Vernon's Ann.Civ.St., to fix venue of this action in Harris County.
The material parts of said Article 1995 read:
It is admitted by appellant that the venue of this suit is maintainable in Harris County as against his vendor, O. H. Miller, under exception 5 of said ...
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...party to the suit, within the meaning of Subdivision 29a of said Article 1995, Vernon's Ann.Civ. Statutes; Boettcher v. Federal Land Bank of Houston, Tex.Civ.App., 142 S.W.2d 272; Pioneer Building & Loan Ass'n v. Gray et al., 132 Tex. 509, 125 S.W.2d 284, 285; Commonwealth Bank & Trust Co. ......
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