SELLERS, Justice.
Mrs. Eubank brought this suit upon the following verified petition:
"Now comes Mrs. T. A. Eubank, who resides in Red River County, Texas, hereinafter called Plaintiff; complaining of E. C. Brand, Banking Commissioner of the State of Texas, and of the Citizens' State Bank of Detroit, Texas, a state banking institution, doing business in Red River County, Texas, now in liquidation and in charge of E. C. Brand, Commissioner of Banking of the State of Texas, who resides in Travis County, Texas, and upon whom service may be had, hereinafter called defendants; and for cause of action Plaintiff alleges:
"1. That she is the surviving wife of T. A. Eubank, deceased, who departed this life on January 22, 1931, leaving a will in which he made plaintiff, who is one and the same person as Bell Eubank, Independent Executrix and sole legatee.
"2. That at the time of the death of T. A. Eubank, his estate was insolvent and is at this time insolvent and plaintiff will receive nothing from his estate as sole legatee.
"3. That the last will and testament of the said T. A. Eubank was duly probated in the Probate Court of Red River County, Texas, on the 5th day of August, 1931, and the plaintiff, under the name of Bell Eubank, immediately took charge of all the property belonging to said estate and is administering said estate as executrix thereof.
"4. That the said T. A. Eubank, at the time of his death was indebted to the Citizens' State Bank of Detroit, Texas, defendant
herein, and his estate is still indebted to said Bank; that some time after the death of the said T. A. Eubank and before plaintiff had taken charge as administratrix of his estate, said Citizens' State Bank of Detroit, acting by and through its president, T. D. Wilson, and its cashier, F. D. Inzer, requested plaintiff to renew said indebtedness, stating that the Bank Examiner had criticized its being past due; that said officers presented to her, the following note to be signed by her in renewal of the said indebtedness of her said deceased husband to said Bank;
`Detroit, Texas, April 22nd, 1931 $3,289.55
`Mules On demand after date, for
value received, I, we or either
`Horse of us promise to pay to
the order of
Citizens' State Bank
`Crop Thirty Two Hundred Eighty
Nine & 55/100 Dollars with
`Wagons interest from date at the
rate of 8 per cent. per annum
payable annually at
Citizens' State Bank, Detroit
Texas
`Farming We, the makers, sureties, endorsers
Implements and guarantors of
this note hereby severally
waive presentment for payment
notice of non-payment
protest and notice of protest
and diligence of bringing
suit against any party thereto
and consent that time of
payment may be extended
without notice thereof to
either of us. It is further
expressly agreed that if this
note after maturity is
placed in the hands of an
attorney for collection,
whether suit is brought on
same or not, then in that
event to pay the owner or
holder of this note ten per
cent., additional of the principal
and interest hereon as
attorneys fees or commission
fees for collection. Attorney's
fees in no case to
be less than $10.00.
`No. 7090 P. O. Detroit, Texas.'
—which said note she signed `Mrs. T. A. Eubank'; that at time of the signing of said note said bank and said officers understood the same to be a renewal note executed in renewal of a note, which evidenced her said husband's indebtedness to said bank; that said bank and said officers and this defendant intended such note to be such a renewal and did not intend the same to be a liability against her individually, nor that the same should evidence an indebtedness otherwise than an indebtedness against the estate of the said T. A. Eubank, deceased. That at the time of the signing of said renewal note the original note signed by the said T. A. Eubank, to said bank, was retained by said bank and is now in the possession and under the control of the said E. C. Brand, Banking Commissioner of the State of Texas, or his agents in charge of the liquidation of the affairs of said Citizens' State Bank of Detroit, and he is hereby notified to produce said note on the final trial of this cause or else the existence and contents of same will be proven by secondary evidence.
"5. That said note was signed by her without consideration moving to Plaintiff, personally, and for no other purpose other than the renewal of her deceased husband's indebtedness to said bank, and was so understood by her and the officers of the bank, as aforesaid.
"6. That on the 15th day of December, 1931, the Citizens' State Bank of Detroit, Texas, Defendant herein, closed its doors because of its insolvency and was taken over by the then Banking Commissioner of the State of Texas, James Shaw, for the purpose of liquidating the same, and said bank and its affairs are now in the possession of the aforesaid E. C. Brand, successor to the said James Shaw, as Banking Commissioner of the State of Texas.
"7. That after the closing of said bank, the then Banking Commissioner, his agents and servants in charge of the liquidation of said Bank had full notice that the above set out note was executed in renewal of a note held by said bank against plaintiff's deceased husband, T. A. Eubank, and for no other purpose, and that the same evidenced an indebtedness due said bank by her husband.
"8. That article 4616 of the Revised Statutes of Texas provides that: `Neither the separate property of the wife, nor the rents from the wife's separate real estate, nor the interest on bonds and notes belonging to her, nor dividends on stocks owned by her, nor her personal earnings, shall be subject to the payment of debts contracted by the husband nor of torts of the husband.'
"That this defendant does now and has for many years heretofore owned in her own right as her separate property One Hundred Acres of land in the State of Oklahoma
Choctaw County, that the record title of said land is in the name of Bell Eubank, that said land is farming land and that at this time said land is rented to tenants, said rents to be paid in portions of the crops raised on said premises.
"9. That under the law of the State of Oklahoma, a Plaintiff suing a non-resident of said state upon a contract is not required to execute any bond when he has an attachment levied upon said non-resident's property and said non-resident has no remedy at law against any one having such property seized under the writ of attachment for damages to said property in any way. That on the 30th day of September, 1932, the then Banking Commissioner of the State of Texas, James Shaw, and acting as such Banking Commissioner and in such capacity for the purpose of evading the law of the State of Texas and for the purpose especially of evading article 4616 of the Rev. Stat. of Texas, as quoted above, fraudulently and for the purpose of depriving this plaintiff of her rights as secured to her by the laws of Texas and especially her rights under said Art. 4616, and for the purpose of fraudulently appropriating her separate property and the rents and revenues derived therefrom to the payment of her deceased husband's debts, instituted suit against her as `Bell Eubank who is one and the same person as Mrs. T. A. Eubank' and sets up as a cause of action `That heretofore and on or about the 22nd day of April, 1931, the defendant herein, Bell Eubank under the name of Mrs. T. A. Eubank for a valuable consideration, made, executed, and delivered to the Citizens' State Bank, of Detroit, Texas, her certain promissory note in writing, a true and correct copy of which is attached hereto marked Exhibit A and by this reference made a part of this petition; that under and by the terms of said promissory note, the defendant agreed to pay to said Citizens' State Bank the sum of $3289.55, with interest thereon at the rate of 8% from the date thereof until paid.
"`That said note by its terms provided that in the event said note was placed in the hands of an attorney for collection, the maker thereof will pay to the holder thereof the additional sum of ten per cent of the principal and interest as attorney's fees; that said note has been placed by the plaintiff herein in the hands of Hal Welch, attorney at law, in Hugo, Oklahoma, for collection; that on the 30th day of December, 1931, there was paid upon said note the sum of $984.74 and no other payments have been made thereupon.
"`That on the date of said payment there was due upon said...
