First State Bank v. Jones

• Decision Date: 08 March 1916
• Docket Number: (No. 2785.)
• Citation: 183 S.W. 874
• Parties: FIRST STATE BANK OF AMARILLO v. JONES.
• Court: Texas Supreme Court

183 S.W. 874

FIRST STATE BANK OF AMARILLO v. JONES.

(No. 2785.)

Supreme Court of Texas.

March 8, 1916.

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

Action by T. K. Jones against the First State Bank of Amarillo and another. Judgment for plaintiff was affirmed on the named defendant's appeal to the Court of Civil Appeals (171 S. W. 1057), and such defendant brings error. Reversed and reformed.

Turner & Rollins, of Amarillo, and W. T. Allen, of Henrietta, for plaintiff in error. R. E. Taylor, of Henrietta, Leslie Humphrey, of Wichita Falls, and Wantland & Parrish, of Henrietta, for defendant in error.

YANTIS, J.

The trial was in the district court before the judge without a jury. A judgment was rendered in favor of T. K. Jones, the plaintiff there, and defendant in error here. A judgment was rendered in his favor in the district court foreclosing his judgment lien on the land of W. S. Roberts, one of the defendants, giving priority to his lien over the deed of trust lien held by the First State Bank of Amarillo, one of the defendants in said suit, and plaintiff in error in this court. Judgment was also given in favor of the bank against Roberts for its debt and a foreclosure of its lien, but giving priority to the Jones judgment lien. The bank alone appealed to the honorable Court of Civil Appeals for the Second District, in which court the judgment of the district court was affirmed. The bank presented in this court its petition for writ of error. Jones, the defendant in error, filed an answer thereto, which rendered the case subject to immediate disposition.

We take the following statement of the case from the opinion of the honorable Court of Civil Appeals, which presents the issues to be considered:

"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, 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 quit claim 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 the 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. attorney's 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 the First State Bank of Amarillo: The first for the principal sum of $5,500 dated December 1, 1911, due 90 days after date; the second for the principal sum of $4,798.85, dated September 6, 1912, due November 1, 1912; the third for the principal sum of $5,253.59, dated August 8, 1913, due October 1, 1913. It does not appear from the statement of facts that either the second or third note purports upon its face to be a renewal of any other note. Mike C. Le Master testified upon the trial as follows: `I was president of the First State Bank of Amarillo during the latter part of 1911, the year of 1912, and the first half of 1913, and was president of said bank on the 18th day of April, 1912. I am now familiar with the release executed by me as president of said bank to W. S. Roberts, dated April 18, 1912, recorded in Volume 67, p. 512, Deed of Trust Records of Clay County, Tex., but was not familiar with the contents thereof at the time of its execution. The statement in said release to the effect that the note for $5,500, secured in the deed of trust of December 21, 1911, recorded in Volume 17, p. 253, Deed of Trust Records of Clay County, Tex., made by W. S. Roberts to me as trustee for First State Bank of Amarillo, is not true. The note mentioned has never been paid, except in part. There was paid on it $900 about the time of the execution of said release. An error of the stenographer in failing to cancel a portion of the printed form of said release, which was overlooked by myself when signing such release, accounts for the mistake in said release. My intention was to release certain lands, about 55 acres, described in a certain deed from W. S. Roberts to E. C. Carter, dated the 17th day of April, 1912, and now of record in the Deed Records of Clay County, Tex., in Volume 66, p. 110, and it was not my intention to release all the property covered by said...