Daggett v. Farmers' Nat. Bank

• Decision Date: 08 December 1923
• Docket Number: (No. 10412.)
• Court: Texas Court of Appeals
• Parties: DAGGETT v. FARMERS' NAT. BANK et al.<SMALL><SUP>*</SUP></SMALL>

259 S.W. 198

DAGGETT v. FARMERS' NAT. BANK et al.^*

(No. 10412.)

Court of Civil Appeals of Texas. Fort Worth.

December 8, 1923.

Rehearing Denied February 2, 1924.

Appeal from District Court, Clay County; H. R. Wilson, Judge.

Suit by Mary H. Daggett against the Farmers' National Bank and others. Judgment for defendants, and plaintiff appeals. Reversed, and cause remanded for further proceedings.

See, also, 252 S. W. 344.

W. G. Eustis, of Henrietta, for appellant.

Thompson & Pittman, of Stephenville, for appellees.

BUCK, J.

Mrs. Mary H. Daggett, of Minneapolis, Hennepin county, Minn., on December 14, 1921, filed a suit against the Farmers' National Bank of Stephenville, Erath county, hereinafter called bank, W. H. Frey being alleged as president, and against Will Clay, also of Erath county.

The first count was in the form of trespass to try title. In the second she alleged that the bank had, on or about July 1, 1921, filed suit against plaintiff, George H. Daggett, her husband, and Elliott Daggett, who it seems was her son, and in said suit had levied an attachment on part of the property described in the petition; that said bank secured a judgment against George H. Daggett, but the suit as to Elliott Daggett was dismissed for want of service; that in said suit judgment was rendered in favor of the plaintiff, except as to a foreclosure of the attachment lien. This judgment was rendered on October 22, 1921, and directed that an order of sale issue to the sheriff of Clay county to sell said property, and that said sheriff was proceeding to advertise said property for sale on the first Tuesday in January next; that on September 6, 1921, the defendant Will Clay obtained a judgment in the county court of Erath county against George H. Daggett for $675, foreclosing an attachment lien that was levied by the sheriff on all of the land in controversy in this suit, that the plaintiff was not a party to said suit; that said judgment directed an order of sale to issue. She further alleged that in the suit of the bank against George H. Daggett, in the county court of Erath county, in which said bank recovered a judgment of $790.50, said court did not have jurisdiction to foreclose the writ of attachment on said property against the plaintiff, there being no judgment against the plaintiff for any money, and the issue of the ownership of the property attached and foreclosed on was not raised in the suit. She further alleged that her husband, George H. Daggett, had no interest in any of the property levied on and that she had good title, in her separate capacity, to all of said property. She prayed for a temporary writ of injunction, restraining the defendants named and the sheriff of Clay county from selling, or offering for sale, said property, pending a determination of this suit.

Will Clay answered by way of a general demurrer and a special exception, calling attention to the fact that plaintiff was a married woman when said suit was filed, and that her husband did not join her therein. He pleaded not guilty, entered a general denial, and specially denied that she owned any of the lands levied on in her separate capacity, but only had a community interest in a part thereof.

The defendant bank pleaded in abatement that the plaintiff was a married woman, and not authorized to sue without a joinder of her husband. It further pleaded a general demurrer, and specially excepted to plaintiff's plea of the three and four years' statutes of limitation; pleaded its judgment obtained against George H. Daggett in the county court of Erath county, and alleged that at the time said judgment was rendered George H. Daggett and Mary H. Daggett were husband and wife; that they had never resided in the state of Texas, but had resided in the state of Minnesota; and that said judgment so obtained was final, and concluded any and all rights and interest to which the plaintiff might have owned in said lots and premises. It specially pleaded that the property levied on was community property of the plaintiff and her husband, and that George H. Daggett had executed and delivered to plaintiff, without consideration, his deed, conveying to plaintiff all his right, title, and interest in the lands; that at the time of such conveyance the bank was threatening to sue said George H. Daggett, and the deed was executed for the purpose of placing said property beyond the reach of Daggett's creditors. It further alleged that at the time the money was loaned by the bank to George H. Daggett the later represented to the bank that he was solvent, and had property worth approximately $100,000, and specially mentioned the property at Henrietta, in Clay county, as being his property. Further pleadings are shown in the record, but we think what we have stated is sufficient for the disposition of this appeal. If further mention of the pleadings be necessary, we will state them. The defendants prayed that the plaintiff take nothing by reason of her suit, and that the temporary writ of injunction theretofore granted by dissolved.

On a trial before a jury, two special issues were submitted, which, with the answers thereto, are as follows:

"(1) At the time of the levy of the writ of attachment in this case on July 8, 1921, by the Farmers' National Bank of Stephenville on the property in controversy, was such property the separate property of Mary H. Daggett? Answer: No.

"(2) If you answer the above issue, `Yes,' then you need not further answer, but if you answer the same, `No,' then answer this question: At the time of the levy of the writ of attachment, on July 8, 1921, upon the property in controversy, was such property the community of George H. Daggett and Mary H. Daggett? Answer: Yes."

Thereupon the court entered judgment for the defendants, dissolving the injunction and decreeing that the defendant bank had a valid attachment lien on lots 1, 2, 3, and 4, and on an undivided one-half interest in lots 13 and 14, and the south 10 feet off of lot 15, block 17, original addition to the town of Henrietta, and that said lots, the evidence showing them to be improved business property, were liable for the payment of the bank's judgment against George H. Daggett. The judgment further decreed that defendant Clay had a valid attachment lien on lots 15 and 16, in block 15, in railroad addition to the town of Henrietta, and on lots 1 to 4, inclusive, and 9 to 14, inclusive, block 9, and lots 9 and 10, block 2, Barrett's addition; and all of blocks 29 to 56, inclusive, in Park addition to the town of Henrietta; that said lands and premises were subject to the attachment lien, and liable for the payment of the Clay judgment against George H. Daggett. From this judgment the plaintiff has appealed.

The appellee Will Clay objects to the consideration of the statement of facts filed herein, and moves to strike from the record such statement of facts, in so far as the appellee Clay is concerned. The ground of his complaint is that the caption of the statement of facts does not show that Will Clay was a party to the suit. The heading is: "Mary H. Daggett v. Farmers' National Bank of Stephenville, Tex.," with the number of the case, and "In the district court of Clay county, Texas, April term, 1922." The number of the case shown in the caption is the same as that of the case tried. The statement of facts is approved by the district judge; he stating that, the parties having failed to agree upon a statement of facts, he approved the foregoing as a complete statement of facts proven on the trial of said cause. The appeal bond, called a supersedeas bond in the transcript, shows that the plaintiff appeals from the judgment against her and in favor of the three defendants, including the sheriff. We are of the opinion that appellee Clay's motion should be overruled.

In the ninth assignment shown in appellant's brief objection is urged to the admission of the testimony of W. H. Frey, president of the appellee bank, respecting a conversation had by him with George H. Daggett prior to the making of the loan to him by the bank. He testified in part as follows:

"I know George H. Daggett. I knew him during 1920. I judge I first met him along in January of that year. He told me he was living here at that time, but was down there for a short time. I know he was in Stephenville on April 2d and for a month or so after that, and he had been there two or three months prior to April 2d. During the time he was there he was engaged in hauling oil well supplies to Desdemona. He was connected with his son in that business. I know his son personally. As president of the Farmers' National Bank, I made a loan of $1,000 to Mr. Daggett. Before I let him have the money I questioned him about what property he had, and he told me he had some business property and lots in the town of Henrietta. He told me he had property here worth $50,000, and that he was worth $100,000; the other property being in stock in some concern in Minneapolis. He told me the business property and lots in Henrietta were worth $50,000. He told me that the day I made him the loan. That was October 2, 1920. I believed what he said, and relied upon his representations in letting him have that money. If he had not made those representations to me, I would not have let him have the money."

The plaintiff objected to that part of the testimony in which Mr. Frey stated that Mr. Daggett had told him that he owned $50,000 worth of property in the town of Henrietta, and that Frey believed then that he owned such property, and would not have made him the loan had he known that Daggett did not own any property.

At the time of the trial Daggett was dead, though it is not clear that he was dead at the time the suit was filed. The objection to this testimony was that the same was irrelevant and immaterial, and because George H. Daggett was dead. We think the testimony as to the statement claimed to have been made by George H....