Bruce v. First Nat. Bank

• Court: Texas Court of Appeals
• Writing for the Court: Stephens
• Citation: Bruce v. First Nat. Bank, 60 S.W. 1006 (Tex. App. 1901)
• Decision Date: 02 February 1901
• Parties: BRUCE et al. v. FIRST NAT. BANK OF WEATHERFORD et al.

60 S.W. 1006

BRUCE et al. v. FIRST NAT. BANK OF WEATHERFORD et al.

Court of Civil Appeals of Texas.

February 2, 1901.

Appeal from district court, Parker county; J. W. Patterson, Judge.

Suit by the First National Bank of Weatherford against M. T. Bruce, in which J. Laing and D. C. Bruce separately intervened. From a judgment in favor of plaintiff, defendant and intervener Bruce appeal. Affirmed.

Martin & Flanary and H. W. Kuteman, for appellant M. T. Bruce. A. H. Culwell, for appellant D. C. Bruce. G. A. McCall, for appellee First Nat. Bank. A. T. Watts, for appellee J. Laing.

STEPHENS, J.

This suit was instituted by the First National Bank of Weatherford, Tex., against M. T. Bruce upon two negotiable promissory notes dated April 27, 1892,—one for $1,000, due one year after date, and the other for $5,000, due two years after date,—both signed by M. T. Bruce, and payable to the order of J. Laing, who indorsed them in blank. The bank also sought a foreclosure of the vendor's lien on certain improved lots in the town of Weatherford, conveyed by Laing to Bruce when the notes were executed. The transfer of the notes from Laing to the bank was denied by Bruce, who specially pleaded that they had been paid off by him and surrendered to him by Laing, and that the bank subsequently obtained possession of them under circumstances rendering it a holder in bad faith, or at least that it took them after maturity, and with notice that he had paid them. The petition of the bank was filed September 20, 1897, and the answer of Bruce April 13, 1898. On April 18, 1900, after there had been a trial and an appeal to this court (55 S. W. 126), D. C. Bruce, a son of M. T. Bruce, intervened, claiming to be the owner and in possession of the property upon which the bank sought to foreclose the lien, alleging that he had purchased it upon the faith of representations made to him by M. T. Bruce and J. Laing to the effect that the bank did not own the notes sued on, and that the same did not represent a bona fide debt; that no debt was due to the bank from either Bruce or Laing,— and charging collusion between Laing and the bank. On the same day Laing intervened, denying the allegations in D. C. Bruce's plea of intervention, admitting that he had pledged the notes sued on as collateral for what he still owed the bank, and alleging that they had been executed to enable him to use them as collateral under the following circumstances: That he made the deed to the lots in question, which were his own property, to M. T. Bruce, with the understanding that they were to remain his property, and that Bruce was to reconvey them to him whenever he should return the notes sued on to Bruce, who agreed to allow him to thus use the notes as collateral, and that no money whatever was paid for the lots. Laing further alleged a dissolution of the partnership in the liquor business between him and M. T. Bruce about August 1, 1894, charging that first M. T. Bruce, and then D. C. Bruce, paid him rents on the property, and pleading an estoppel against D. C. Bruce as his tenant. His prayer was for the recovery of the property, subject to the lien of the bank. The issues so made were submitted to the jury, upon whose verdict judgment was entered in favor of the bank for $2,100, the amount of the principal debt still due the bank, with foreclosure of the lien on the lots, and in favor of Laing against M. T. and D. C. Bruce for the recovery of the lots, subject to the bank's lien. It was further decreed that no execution should be issued against M. T Bruce for any balance that might remain unpaid after the sale of the lots under the order of sale. From this judgment both M. T. and D. C. Bruce have appealed. Before the intervention of D. C. Bruce, M. T. Bruce filed an admission in writing of the bank's right to recover, except in so far as the same might be defeated by the defensive matter set up; "that is, the notes herein sued on were fully paid and discharged by defendant Bruce, and that plaintiff acquired possession of the same after maturity." On the issue of payment thus tendered by M. T. Bruce the evidence was conflicting, but fully warranted the finding evidently made by the jury against him upon it. The evidence was also conflicting on the issue tendered by intervener Laing's plea as to the circumstances under which the notes declared on were executed, and the nature of the transaction between him and M. T. Bruce, but likewise warranted the jury in finding the facts to be substantially as alleged in that plea. The date of the dissolution of the partnership between Bruce and Laing was not correctly given in the plea, as the evidence showed the true date to be July 31, 1892, but that was immaterial. On the plea of estoppel against D. C. Bruce the evidence warranted, if it did not require, a finding that he held possession of the property as tenant of Laing, paying or promising to pay rents as such from 1894 or 1895 to 1897. It will be noted, also, that D. C. Bruce failed to deny, by any pleading filed in the case, these allegations made against him by Laing. The statement of facts fails to show that D. C. Bruce had any interest in the property except as tenant, unless the following quotation therefrom shows it, which can hardly be claimed: "Intervener D. C. Bruce offered in evidence deed from M. T. Bruce to D. C. Bruce dated January 15, 1898, filed February 5, 1900." We are thus left to conjecture as to what was conveyed by this deed.

The first error is assigned to the court's refusal to permit intervener Bruce, in the selection of the jury, to make peremptory challenges as shown by the bill of exceptions. He demanded a separate jury list for the purpose of himself making six peremptory challenges, without reference to the number made by M. T. Bruce, which was properly denied upon the ground that their interests were not adverse, but that both intervener Bruce and defendant Bruce were to be regarded as one party, within the meaning of the jury law, and entitled together to only six peremptory challenges. Rev. St. art. 3212; Hargrave v. Vaughn, 82 Tex. 347, 18 S. W. 695; Kelley-Goodfellow Shoe Co. v. Liberty Ins. Co. (Tex. Civ. App.) 28 S. W. 1027; Baum v. Sanger (Tex. Civ. App.) 49 S. W. 650; 12 Enc. Pl. & Prac. p. 483 et seq. He then demanded that the defendant Bruce be required, or that he (intervener) be permitted, to peremptorily challenge three of those offered as the panel to select from, giving their names; but the...