First State Bank v. Jones

• Decision Date: 21 November 1914
• Docket Number: (No. 7989.)<SMALL><SUP>†</SUP></SMALL&gt
• Citation: 171 S.W. 1057
• Parties: FIRST STATE BANK OF AMARILLO v. JONES.
• Court: Texas Court of Appeals

171 S.W. 1057

FIRST STATE BANK OF AMARILLO v. JONES.

(No. 7989.)^†

Court of Civil Appeals of Texas. Ft. Worth.

November 21, 1914.

On Rehearing, December 12, 1914.

Appeal from District Court, Clay County; P. A. Martin, Judge.

Action by T. K. Jones against W. S. Roberts and the First State Bank of Amarillo. From a judgment for plaintiff, the First State Bank of Amarillo appeals. Affirmed.

Turner & Wharton, of Amarillo, and W. T. Allen, of Petrolia, for appellant. R. E. Taylor, Wantland & Parrish, and Leslie Humphrey, all of Henrietta, for appellee.

DUNKLIN, J.

T. K. Jones instituted this suit against W. S. Roberts and the First State Bank of Amarillo to foreclose an alleged judgment lien upon land situated in Clay county consisting of two lots in the town of Henrietta and a tract of 103.2 acres. Plaintiff alleged in his petition that the bank was asserting some claim to the property and prayed that the judgment lien sought to be foreclosed be established as superior to any claim asserted by the bank. From a judgment in favor of the plaintiff granting the relief prayed for, the defendant bank alone has appealed.

On the original hearing the judgment was reversed and judgment was here rendered in favor of the bank, but upon a motion for rehearing by appellee Jones the judgment was affirmed. Appellant has now moved for a rehearing, and, in order to set out more fully and more accurately the facts shown in the record, both original opinions are withdrawn, and this is filed as a substitute therefor. The judgment upon which the alleged lien was predicated was rendered in favor of Jones against Roberts on October 8, 1912, and an abstract of same was filed in Clay county on October 9, 1912. The evidence shows that plaintiff's judgment against Roberts was rendered for $12,986.74, and as so rendered it was abstracted. Three days after the rendition of the judgment a remittitur of $860.48 was filed by the plaintiff in the judgment reciting that to that extent the judgment was excessive, and that the error was due to a mistake in calculation of the amount due upon the promissory notes which formed the basis of that suit.

The controversy between Jones and the bank in this suit is a question of priority of liens, the bank claiming a lien upon the land in controversy superior to that of the judgment lien. The following evidence appears in the statement of facts: On December 21, 1911, Roberts executed a deed of trust upon the property in controversy and another tract of land consisting of 50 acres also situated in Clay county to secure the bank in the payment of a promissory note for the principal sum of $5,500, dated December 1, 1911, and due 20 days after date with 10 per cent. interest and 10 per cent. attorney's fees. This deed of trust was duly filed for record in Clay county on December 22, 1911. On April 18, 1912, the bank, acting through its president, Mike C. Le Master, executed a release in words and figures as follows:

"State of Texas, County of Potter.

"Know all men by these presents: Whereas, on the 1st day of December, 1911, W. S. Roberts of Potter County, Texas, did execute, acknowledge and deliver to Mike C. Le Master, trustee, for benefit of First State Bank, Amarillo, of Potter County, Texas, a certain deed of trust on the following described real estate, situated lying and being in the county of Clay in said state of Texas, which deed of trust is recorded in Book 17, page 253, Mortgage Records of Clay County, Texas, to wit: A certain fifty acres of land, which is described by metes and bounds in the above-mentioned deed of trust, and being part of a certain deed recorded in Book 49, page 18, Deed Records of Clay County, Texas, and specifically described in a deed, dated Amarillo, Texas, dated April 17, 1912, executed by W. S. Roberts to E. C. Carter, to secure the prompt payment of one certain promissory note executed by the said W. S. Roberts and payable to the order of First State Bank, Amarillo, Texas, as, follows: One note of fifty-five hundred dollars, due March 1, 1912, and bearing interest from maturity at the rate of ten per cent. per annum; and whereas, said note with accrued interest has been fully paid, and at the time of such payment said note was the property of First State Bank, Amarillo, Texas: Now, therefore, know all men by these presents, that I, Mike C. Le Master, president of First State Bank, Amarillo, of Potter County, Texas, in consideration of the premises and of the full and final payment of said note, the receipt of which is hereby acknowledged, have this day and do by these presents, remise, release and quitclaim unto the said W. S. Roberts, his heirs and assigns, the lien heretofore existing on said premises by virtue of said deed of trust, and do hereby declare the same fully released and satisfied."

That release was properly filed for record in Clay county on May 27, 1912. On October 15, 1912, W. S. Roberts executed another deed of trust to Mike C. Le Master, trustee for the First State Bank of Amarillo, which was filed for record in Clay county October 17, 1912, and duly recorded in Deeds of Trust Records of that county, upon all the land described in the original deed of trust, except that described in the release, which recited the execution and record of the deed of trust dated December 21, 1911, also the execution and record of that release of date April 18, 1912, from the First State Bank of Amarillo to W. S. Roberts, stating, in substance, that said release was intended only to release the two tracts of land therein described and referred to containing one 5-acre tract and one 50-acre tract, two of the tracts described in the deed of trust of date December 21, 1911; that the execution of said release was in consideration only of the payment of the sum of $900 and not the whole indebtedness secured by the deed of trust; that it was the intention of all the parties to the instrument that the release should be made to said 55 acres only and no more, and that the recital in the release of the full payment of the $5,500 note was a mistake made through inadvertence on the part of the person who prepared the release and on the part of Mike C. Le Master, president of the bank. This instrument further stipulated that it was given to secure the payment of the balance due the bank evidenced by a note for $4,798.85, dated September 9, 1912, due November 1, 1912, with 10 per cent. interest from maturity and 10 per cent. attorneys' fees; that said note was in renewal of said original indebtedness of $5,500 secured by the first deed of trust; and that the deed of trust then being executed was given to continue in full force and effect the original deed of trust executed by Roberts and mentioned above.

The defendant also introduced in evidence the following promissory notes all executed by W. S. Roberts, payable to the order of...