Exchange Nat. Bank v. Parsons

• Decision Date: 29 April 1938
• Docket Number: No. 1784.,1784.
• Citation: 116 S.W.2d 817
• Parties: EXCHANGE NAT. BANK v. PARSONS et al.
• Court: Texas Court of Appeals

116 S.W.2d 817

EXCHANGE NAT. BANK v. PARSONS et al.

No. 1784.

Court of Civil Appeals of Texas. Eastland.

April 29, 1938.

Appeal from District Court, Eastland County; Geo. L. Davenport, Judge.

Suit by the Exchange National Bank against J. D. Parsons and others to recover on a note and for cancellation of deeds, wherein named defendant filed a general demurrer. From a judgment for defendants, plaintiff appeals.

Affirmed.

Frank Sparks, of Eastland, for appellant.

Scott & Gilbert, of Cisco, for appellees.

FUNDERBURK, Justice.

In this suit Exchange National Bank of Eastland, Tex., seeks to recover against J. D. Parsons upon a note dated May 8, 1929, for the principal sum of $3,520 (upon which $1,000 was acknowledged as a credit), payable on demand to said bank; and against J. D. Parsons, his wife, Mrs. M. A. Parsons, and their three daughters, Rebecca, Luda May, and Clemma Parsons, for cancellation of deeds to said daughters of 253 acres of land in Eastland county and 240 acres in Jones county, alleged to constitute conveyances made with intent to delay, hinder, and defraud plaintiff as a creditor. Plaintiff alleged that said note was a renewal of a former note dated January 17, 1929; that, at the time of the execution of said original note, Parsons made a signed written statement to appellant to the effect that he owned the 240-acre tract of land in Jones county of the value of $12,000, the 253-acre tract in Eastland county of the value of $5,000, and, in addition, a home in Eastland of the value of $4,000, all of which were free of encumbrances and "will so remain while indebtedness to Exchange National Bank is unpaid." It was alleged that said 253 and 240 acre tracts had been conveyed to said named daughters without valuable consideration therefor, in violation of the said statement that same would remain free of encumbrances while the said indebtedness existed, and to place said property beyond the reach of J. D. Parsons' creditors, and to defeat the note in suit.

Defendant J. D. Parsons, in addition to general demurrer and general denial, specially pleaded to the effect that he was an accommodation surety on the original note given to take up an overdraft due by a firm consisting of C. C. Lowe and Jodie Parsons (the latter a son of J. D. Parsons), and that he signed same upon an agreed condition that the principals C. C. Lowe and Jodie Parsons should sign the note; that by reason of the failure of the bank to have such principals sign the note, defendant was not liable.

J. D. Parsons and wife specially pleaded that they were indebted to their said three daughters in the sum of $3,500; that they conveyed to them said land in settlement and payment of said indebtedness; that, while the recited consideration was $1 and love and affection, the real consideration was the discharge of said indebtedness. They further specially pleaded that the 253 acres of land in Eastland county was their homestead, exempt from the claims of creditors and that, therefore, they had the legal right to convey same to their daughters.

The special pleadings of J. D. Parsons and wife with reference to the conveyance of the land to their daughters and the claim that the 253-acre tract was homestead of J. D. Parsons were repeated in special separate pleas by the daughters.

By supplemental petition plaintiff pleaded that J. D. Parsons by paying the $1,000 on the note had thereby ratified and confirmed the debt and obligation and was estopped to assert that he was not liable to pay the note.

In a nonjury trial the court rendered judgment generally for defendants and against plaintiff, from which judgment the latter has appealed.

By the first proposition appellant contends, in effect, that the execution of the note by J. D. Parsons having been shown and not denied by verified plea of non est factum or want of consideration, and being past due and unpaid, said Parsons was thereby shown to be liable for the debt.

The evidence did not raise any question, to support which, a plea of non est factum was necessary. No effect, we think, can be given to the fact that the plea of want of consideration was not verified. The record shows that appellant excepted to the plea because it was not verified; but it further shows no action on the exception. There is no assignment of error presenting any question regarding such exception. It seems to be the rule in this state that a failure to except to the nonverification of a plea of want or failure of consideration constitutes a waiver thereof. Williams v. Bailes, 9 Tex. 61; Drew v. Harrison, 12 Tex. 279; Rankert v. Clow, 16 Tex. 9; Capps v. Olive, Tex.Civ.App., 26 S.W. 471; Nasworthy v. Draper, Tex.Civ.App., 28 S.W. 564; Ashcroft v. Stephens, 16 Tex.Civ.App. 341, 40 S.W. 1036; Adcock v. Creighton, 27 Tex.Civ.App. 243, 65 S.W. 42; Gulf, C. & S. F. Ry. Co. v. Jackson, Tex.Civ.App., 86 S.W. 47; Oneal v. Weisman, 39 Tex.Civ.App. 592, 88 S.W. 290; Standard Underground Cable Co. v. Southern Ind. Telephone Co., Tex.Civ. App., 134 S.W. 429; Texas Co. v. Dunn, Tex.Civ.App., 219 S.W. 300; First Nat. Bank v. Sproles, Tex.Civ.App., 233 S.W. 329; Farris v. U. S. F. & G. Co., Tex. Civ.App., 251 S.W. 612; Citizens' Garage Co. v. Wilson, Tex.Civ.App., 252 S.W. 186; Great So. Life Ins. Co. v. Heavin, Tex. Civ.App., 21 S.W.2d 1086; Nelson v. San Antonio Traction Co., Tex.Civ.App., 142 S.W. 146; Brown v. Weir, Tex.Civ.App., 293 S.W. 916; Taber v. Eyler, Tex.Civ. App., 162 S.W. 490; St. Louis, S. F. & T. Ry. Co. v. Wall, Tex.Civ.App., 165 S.W. 527; Dyo v. Winningham, Tex.Civ.App., 31 S.W.2d 1093; Legg v. Morrow, Tex. Civ.App., 60 S.W.2d 332.

A special exception not called to the attention of the court, and a ruling thereon procured, is regarded as waived. It would be the same, we think, as if no exception had been made. The first proposition, based as it thus appears upon an untenable premise, is overruled.

The next proposition is: "The note herein sued on given in renewal of a previous note obtained by the payee therein under alleged false representation that other signers would be obtained thereon, when so renewed and delivered is freed from such defense to the original note, and the want of...