First State Bank of Tomball v. Tinkham

• Decision Date: 01 June 1917
• Docket Number: (No. 231.)
• Parties: FIRST STATE BANK OF TOMBALL v. TINKHAM et ux.
• Court: Texas Court of Appeals

Page 880

195 S.W. 880

FIRST STATE BANK OF TOMBALL v. TINKHAM et ux.

(No. 231.)

Court of Civil Appeals of Texas. Beaumont.

June 1, 1917.

Rehearing Denied June 13, 1917.

Error from District Court, Harris County; Chas. E. Ashe, Judge.

Suit by the First State Bank of Tomball against George F. Tinkham and wife. From a judgment giving plaintiff partial relief, it brings error. Judgment affirmed.

Thos. H. Ball, of Houston, for plaintiff in error. Fisher, Campbell & Amerman, of Houston, for defendants in error.

HIGHTOWER, C. J.

This suit was filed by plaintiff in error, First State Bank of Tomball, Tex., against George F. Tinkham and his wife, Laura Tinkham, defendants in error, on July 6, 1915, in the district court of Harris county. Plaintiff prayed judgment against both of said defendants upon a promissory note jointly executed by them on the 10th day of November, 1913, payable to plaintiff one year after date, with 10 per cent. interest from maturity until paid, and 10 per cent. additional on the principal and interest as attorney's fees, as provided in said note. Plaintiff further prayed for foreclosure of a mortgage on lot 3, block 17, of the A. C. Allen addition to the city of Houston, and certain 5-acre tracts of land in the town of Tomball, aggregating 55 acres of land. It was alleged that said mortgage or deed of trust was duly signed and acknowledged by the defendant Laura Tinkham, and that the defendant George F. Tinkham, her husband, in order to secure the money represented by the note, had agreed to sign said mortgage or deed of trust, but declined to do so, after the money representing the proceeds of said note had been received by Tinkham and wife.

At the time of the filing of this suit, plaintiff also sued out an attachment, and had same levied upon the property above described. Defendants filed their answer and cross-action on July 20, 1915, admitting the execution of the note, as alleged, but denying that the note was executed for the benefit of the separate estate of Laura Tinkham, and alleged that the deed of trust was void, because not signed by her husband, George F. Tinkham, and claimed the 5-acre tracts in the town of Tomball as their homestead, and the lot in the Allen addition in the city of Houston as the separate property of Laura Tinkham, and prayed that the deed of trust be declared void, as a cloud upon the homestead of defendants and said separate property of defendant Laura Tinkham. Plaintiff replied by supplemental petition, denying the averments in said answer and cross-action of defendants, and set up that the money was procured upon the faith solely of the security offered; that because of the representations made at the time the money was procured, and the agreement by George F. Tinkham to execute the deed of trust, that both defendants were estopped from denying its binding force and effect, to which supplemental petition defendants filed a supplemental answer, generally and specially denying the allegations therein.

When the cause came on for trial, a jury was waived, and the case tried to the court, and after hearing the evidence of all parties, the court rendered judgment for plaintiff in error against defendant in error George F. Tinkham for the amount of the note sued upon, interest and attorneys' fees, amounting in the aggregate to $3,093.75. Recovery was denied upon said note as against defendant Laura Tinkham, because at the time of its execution she was a married woman, and the note was not executed for any purpose sufficient to make her or her separate estate liable for the payment thereof. The trial court further held the deed of trust sought to be foreclosed null and void, because same was executed by Mrs. Laura Tinkham, a married woman, and was not executed by her husband, George F. Tinkham. The court also held that lot 3 in block 17 of the Allen addition to the city of Houston was the separate property of the defendant Mrs. Laura Tinkham at the time of the making of the note, and prior and subsequent thereto, and that the 5-acre tracts of land, aggregating 55 acres in the town of Tomball, was the homestead of defendants, and not subject to incumbrance or forced sale. The court also held, of course, that the attachment lien claimed by plaintiff was, in fact, no lien, and was inoperative. The case is now properly before this court on writ of error.

The first assignment of error is:

"The court erred in rendering judgment solely against the defendant George F. Tinkham in favor of the plaintiff for the sum of $3,093.75, and in not rendering same against both defendants, George F. Tinkham and Laura Tinkham, jointly and severally, as the undisputed facts show that the note sued upon was executed jointly by George F. Tinkham and Laura Tinkham, as original makers, on November 10, 1913, payable to the order of plaintiff, one year after date, and that said note, principal, interest and attorney's fees aggregated the said sum."

The proposition under this assignment is:

"The note sued on was executed by George F. Tinkham and his wife, Mrs. Laura Tinkham, on November 10, 1913, after the statutes of Texas had authorized the joint making of a note by husband and wife so as to bind the wife upon such an undertaking and support a judgment thereon against both husband and wife."

It is admitted that George T. Tinkham and wife, Laura Tinkham, jointly executed the note sued on as of date November 10, 1913, after the act commonly called the Married Woman's Act went into effect. It is admitted that Laura Tinkham, at the date of the deed of trust, was the wife of George F. Tinkham, and that she properly signed and acknowledged the deed of trust, but that her husband never did join her therein. It is admitted that Laura Tinkham made no representations...