Freiberg v. De Lamar

• Decision Date: 17 May 1894
• Citation: 27 S.W. 151
• Parties: FREIBERG v. De LAMAR et al.
• Court: Texas Court of Appeals

27 S.W. 151

FREIBERG v. De LAMAR et al.

Court of Civil Appeals of Texas.

May 17, 1894.

Appeal from district court, Rusk county; W. J. Graham, Judge.

Action by Pauline De Lamar against Bernard Freiberg and others on a promissory note, and to foreclose a mortgage securing the same. From the decree entered, Freiberg appeals. Reversed in part.

N. B. Morris, for appellant. J. H. Turner, for appellee Pauline De Lamar. W. C. Buford, for appellee Mrs. Merritt.

WILLIAMS, J.

Mrs. Jennie De Lamar, as guardian of Pauline De Lamar, on the 9th day of October, 1894, loaned to J. F. Merritt the sum of $2,150 of the funds belonging to the ward, and took as security a mortgage on real estate in the town of Henderson, known as the "Sunny South Saloon." This transaction was reported to and approved by the probate court. On the 23d day of August, 1887, Mrs. De Lamar made the following indorsement on the note: "Received the principal and interest in full," — which was signed by her as guardian. At the same time she executed to appellant, Freiberg, a release of the mortgage, reciting that it was made in consideration of the payment to her by Freiberg of the Merritt note, which payment was acknowledged. This release was executed upon the understanding that the note was to be paid by Freiberg, which was not in fact done. At the same time, Merritt and wife executed a deed to Freiberg for the mortgaged lot, in consideration of $6,500, which was paid to Merritt by Freiberg, partly in money and partly in a debt which he owed the firm of Freiberg, Klein & Co. The guardian had received no authority from the probate court to release either note or mortgage, and Freiberg knew of the mortgage, and that the note was not paid when he bought it from Merritt. On the 1st day of March, 1889, Merritt, joined by his wife, executed to Mrs. De Lamar, as guardian, a new note for the amount of principal and interest due upon the loan, and a mortgage on 350 acres of land, the separate property of Mrs. Merritt, to secure it. At the September term, 1890, of the probate court, Mrs. De Lemar filed an account, in which, among other things, she stated "that she had the $2,150 note of J. F. Merritt, including interest thereon, renewed for $3,017.80, and had taken a deed of trust on 350 acres of land, well improved, which he believed well worth the money owing by said Merritt." At the December term, 1890, the court entered an order as follows: "The annual account of the guardian coming on to be heard, and it appearing to the court to be in all things correct, it is approved and ordered recorded." At the same time the guardian was required to make a new bond, by the March term, 1891, which she failed to do. The money due upon the loan to Merritt is wholly unpaid, except $184.45, paid January 1, 1889, and $200, paid January 6, 1891. On the 16th day of October, 1891, this suit was brought in behalf of the minor, Pauline De Lamar, by next friend, against Merritt and Freiberg, to recover of the former the amount of the original note, and to foreclose as against them both the lien on the Sunny South saloon. Merritt made no defense. Freiberg set up the release by Mrs. De Lamar of the first note and mortgage, and the taking of the new note and mortgage, and the action of the probate court above set forth, in bar of the action. He alleged that certain payments had been made by Merritt on the debt, which had not been credited, and caused Mrs. Merritt to be made a party, and asked that the plaintiff be required to exhaust the security afforded by the second mortgage before subjecting his property, or that, in case his property be subjected, he be subrogated to the right of the plaintiff against the Merritts, and be allowed to enforce the lien on the 350 acres of land, and further prayed for judgment against the Merritts on their warranty of title of the property purchased by him, in case his land should be sold. Mrs. Merritt defended against the foreclosure of the mortgage on the 350 acres of land, alleging, generally, that she had been "influenced and over-persuaded" by her husband to sign the instrument, and that her privy acknowledgment had not in fact been taken by the officer, as certified to by him, and that all of these facts were known to Mrs. De Lamar. There was no allegation of fraud on the part of the officer who took the acknowledgment of Mrs. De Lamar, or of any one connected with the transaction. The case was tried by jury, and a part of the facts above stated were admitted, and are recited in the judgment, and others were found by the jury upon special issues submitted. All of the facts which we have stated are thus established, but there is no statement of facts showing the evidence which was adduced upon the trial of the issues submitted to the jury. Concerning the execution of the mortgage on the 350 acres of land by Mrs. Merritt, the jury found that the officer who certified to the acknowledgment did not take it on a privy examination, separate and apart from her husband, and did not fully explain the instrument to her; but that she did acknowledge to him that the instrument was her act and deed, and that she had willingly signed the same, and that she did not wish to retract it. A decree was entered in favor of plaintiff against J. F. Merritt for the amount of the original note, after deducting the admitted payments, and foreclosing, as against him...