Flynn v. Atlas Life Ins. Co.
| Decision Date | 17 April 1935 |
| Docket Number | No. 8197.,8197. |
| Citation | 81 S.W.2d 772 |
| Parties | FLYNN et al. v. ATLAS LIFE INS. CO. |
| Court | Texas Court of Appeals |
Appeal from District Court, Bell County; Few Brewster, Judge.
Action by the Atlas Life Insurance Company against E. H. Flynn and others. Judgment for plaintiff, and defendants appeal.
Affirmed.
Lockhart & Brown, of Lubbock, for appellants.
Jno. B. Daniel, of Temple, and Critz & Woodward, of Coleman, for appellee.
Suit was by appellee against M. A. Douthit and others upon a note originally executed by Douthit to the Temple Trust Company, and by it assigned to appellee, and to foreclose a deed of trust lien on lands in Lamb county, Tex., given to secure payment of said note.
Plaintiff, appellee here, alleged that Douthit had conveyed the land involved to Weathers, who assumed payment of said note; that Weathers had conveyed it to Matt Skeen, who assumed payment of said note; and that E. H. Flynn had purchased said land under foreclosure of second lien notes against it, but that the claim of Flynn and wife was inferior to that of plaintiff, and prayed that plaintiff's lien be established and foreclosed as superior to any interest of Flynn and wife in the premises. Flynn and wife filed separate pleas of privilege to be sued in Lubbock county, where they resided, which pleas were duly controverted, and heard before the court, without a jury. Douthit and Weathers were dismissed from the suit for lack of service upon them, and Skeen did not answer. Appellants' pleas of privilege were overruled, the case tried on its merits, and judgment rendered for plaintiff as prayed for. Flynn and wife have appealed. The same evidence was heard on the pleas of privilege as upon the merits.
The instruments in evidence show the following: Flynn and wife conveyed said land to Douthit on January 13, 1928, who, in addition to assuming outstanding indebtedness then against it, executed and delivered to Flynn a series of second lien notes against the land. The note and deed of trust here sued upon were then given by Douthit to Temple Trust Company to take up and extend prior first liens against said land and the first two second lien notes executed by Douthit to Flynn, which two notes and lien were assigned by Flynn to Temple Trust Company, in which assignment Flynn acknowledged the superiority of Temple Trust Company's lien, and made the lien securing the remainder of Douthit's notes to Flynn inferior to the lien of Temple Trust Company. The deed to Flynn subsequently made by a trustee, vesting legal title in Flynn, recited sale of the property under such second lien. Such sale, of course, in no wise affected the superiority of Temple Trust Company's outstanding first lien, but did place of record a claim of Flynn to the land.
Appellants insist here that they were entitled to have the...
To continue reading
Request your trial
-
Ulmer v. Dunigan Tool & Supply Co.
...v. Southland Life Ins. Co., Tex. Civ.App., 150 S.W.2d 149; Smith v. Dozier Const. Co., Tex.Civ.App., 66 S.W.2d 744; Flynn v. Atlas Life Ins. Co., Tex.Civ.App., 81 S.W.2d 772; Jackson v. First Nat. Bank, Tex.Civ.App., 37 S.W.2d 356; Demmer v. Lampasas Auto Co., Tex.Civ.App., 34 S.W. 2d 421; ......
-
Pioneer Building & Loan Ass'n v. Gray
...Christian v. Universal Credit Co., Tex.Civ.App., 63 S.W.2d 229, 230, par. 3, and authorities there cited; Flynn v. Atlas Life Ins. Co., Tex.Civ.App., 81 S.W.2d 772, 773, par. 3; Jones-Yates Co. v. Harrison, Tex. Civ.App., 96 S.W.2d The testimony in this case wholly failed to show that appel......