Earhart v. Agnew

• Decision Date: 02 June 1920
• Docket Number: (No. 130-3019.)
• Citation: 222 S.W. 188
• Parties: EARHART et al. v. AGNEW.
• Court: Texas Supreme Court

222 S.W. 188

EARHART et al. v. AGNEW.

(No. 130-3019.)

Commission of Appeals of Texas, Section B.

June 2, 1920.

Error to Court of Civil Appeals of Seventh Supreme Judicial District.

Action by J. W. Agnew against S. M. Earhart, with the Lubbock State Bank as garnishee, in which Mrs. S. M. Earhart intervened and claimed the fund impounded by the garnishment proceeding. From judgment for plaintiff, defendant and intervener appealed to the Court of Civil Appeals, which affirmed (190 S. W. 1140), and defendant and the intervener bring error. Judgment of the district court and Court of Civil Appeals reversed, and judgment rendered for the intervener on recommendation of the Commission of Appeals.

R. A. Sowder, of Lubbock, for plaintiffs in error.

W. F. Schenk and Roscoe Wilson, both of Lubbock, for defendant in error.

Statement of the Case.

KITTRELL, J.

This was an action in the form of a garnishment against the Lubbock State Bank procured for the purpose of reaching certain funds claimed to be the property of T. O. Earhart, husband of the plaintiff in error.

The number of the case on the docket of the district court of Lubbock county was 906, and it was ancillary to a case filed by Agnew, defendant in error, No. 881, in the same court against T. O. Earhart.

The basis of the action in No. 881 was a certain bond executed by one B. F. Montgomery on October 15, 1909, to Agnew to protect him against outstanding vendors lien notes against certain land which Agnew had bought of Montgomery. T. O. Earhart and one Richmond were sureties on the bond, which was for the sum of $6,000, or double the amount of the notes.

It appears from the testimony of Agnew that he did not know that Earhart was on the bond until about two years after it was made, but supposed it was his brother, the bond having been prepared by Agnew's attorney, and he never saw it for about two years, and he had never made any demand on Earhart on account of it.

On June 24, 1913, the holders of the Montgomery notes recovered judgment, and the land was sold.

Some time prior to December 28, 1914, Agnew brought suit on the Montgomery bond against Montgomery, Earhart, and Richmond, but before judgment dismissed as against Richmond without reservation, but as to Earhart he dismissed without prejudice to maintain action at some future time. He took judgment against Montgomery alone for $3,500.

No further action appears to have been taken against Earhart by Agnew until suit No. 881 was filed.

Earhart testified that he had never been called upon to pay the bond, and supposed the notes had been paid. He never agreed to their extension, and that the suit (the one first filed out of which he was dismissed, we construe his language to mean) was the only demand ever made on him.

Testimony to be later set forth makes an understanding of these facts helpful, if not necessary.

The bank answered "that according to the books of said bank it is now, and was at the time said writ of garnishment was served upon it, as shown by the deposit account, indebted to said T. O. Earhart in the sum of $1,205.20," and further stated as a part of its answer that it was "not acquainted with the title to the above said amount of money further than the same was collected upon the note and placed to the credit of said T. O. Earhart, the business having been transacted with him by letter."

S. M. Earhart, wife of T. O. Earhart, and plaintiff in error here, intervened in the action and claimed the money upon grounds that a further statement of the facts will reveal. She and her husband had owned and lived on 640 acres of land with their five children for about eight years. The land lay about 10 miles north of the town of Lubbock. They settled on it in 1901, and in 1909 they moved to Lubbock for the purpose of educating their children. Both testified very positively that up to the time they sold the land they cherished the purpose and intention of returning to it, and that they claimed no other place as their homestead.

The husband testified:

"We bought a house in Lubbock to live in while schooling our children, but sold it prior to the selling of our land."

Deeds were offered in evidence to prove this statement to have been true.

His wife testified:

"My son owned the lots at the time section 22, block D2, was sold to A. Symes. When we moved to Lubbock about three years prior to the sale of the land we owned the lots. My husband was being sued in Lubbock county, and he deeded those lots to my son Earnest."

The son testified that he owned them at the time of the trial.

Deeds offered in evidence showed that on September 19, 1910, T. O. Earhart, without being joined by his wife, conveyed the town lots to his son W. E. Earhart, and that the latter, on August 16, 1912, more than a year after the sale of the country place to Symes, conveyed the lots to his mother.

On January 28, 1910, Earhart gave a mortgage on the north 440 acres of the 640-acre tract for $2,000, and in that instrument especially designated the south 200 acres, the improved part (which was shown to be worth more than the other 440 acres), as his homestead. This was after the family had moved to Lubbock and acquired the city lots on which they lived while there.

On June 16, 1911, Earhart and wife sold the 640 acres to A. Symes for $6,720. $1,400 was paid in cash, and the purchaser assumed the $2,000 mortgage, and three notes for $1,106 each were executed and made payable to T. O. Earhart in one, two, and three years. Earhart used the $1,400 cash to pay debts, or a debt, so far as the same was necessary.

The jury found in response to a special issue that Mrs. Earhart signed the deed on condition that she should have the value of the south 200 acres (the improved part). It was proved, not only by his own testimony, but by the cashier of the bank, who identified the handwriting of the attorney who wrote the transfer, and by the attorney himself, that the three notes were, pursuant to agreement, by Earhart transferred on the day they were made to his wife as the value of her half of the property. It seems that the parties by reason of some domestic infelicity (suggested rather than clearly revealed by the record) divided their property. The notes were carried to the bank by Earnest Earhart for his mother, and as they fell due they were collected by the bank. Earhart and wife had moved to California, but were not living together after their removal. The last of the three notes fell due January 1, 1915, but...