Ganado Land Co. v. Smith

• Court: Texas Court of Appeals
• Writing for the Court: Lane
• Citation: Ganado Land Co. v. Smith, 290 S.W. 920 (Tex. App. 1927)
• Decision Date: 07 January 1927
• Docket Number: (No. 8908.)
• Parties: GANADO LAND CO. v. SMITH et al.<SMALL><SUP>*</SUP></SMALL>

Page 920

290 S.W. 920

GANADO LAND CO. v. SMITH et al.^*

(No. 8908.)

Court of Civil Appeals of Texas. Galveston.

January 7, 1927.

Rehearing Denied January 27, 1927.

Appeal from District Court, Jackson County; John M. Green, Judge.

Action by the Ganado Land Company against John S. Smith and others. Judgment for plaintiff against defendant Smith only. From the judgment for defendant J. E. Harmon, plaintiff appeals, and defendants Smith and Harmon file cross-assignments of error. Reversed and rendered in part. Affirmed in part.

John T. Vance, of Edna, for appellant.

Rose & Sample, of Edna, for appellees.

LANE, J.

On the 17th day of October, 1918, J. E. Harmon, one of the appellees in the present case, by his deed of that date, conveyed to John S. Smith, another of the appellees, 57.33 acres of land in Jackson county, Tex. The consideration expressed in the deed was $1,000 cash, and one note for $933.30 of even date with deed, payable to Agathe Schadwitz or order two years after its date. A vendor's lien to secure the payment of the note was expressed in both the deed and note. On the back of the note the following indorsement appears:

"For value received, I hereby sell, transfer
                and assign to Agathe Schadwitz the within
                note, together with the vendor's lien on the
                property securing the same, and, as indorser
                I guarantee the payment of the within note at
                maturity, or on demand at any time after maturity
                waiving demand, protest, and notice of
                nonpayment thereof.               J. E. Harmon."
                

The note was made payable to Mrs. Schadwitz, to whom J. E. Harmon was indebted, as a credit on such indebtedness. In due course of trade said note was transferred to and became the property of the Bankers' Investment Alliance of Seguin, Tex. After such transfer, to wit, on the 26th day of December, 1922, C. H. Donegan, president of the Bankers' Investment Alliance, hereinafter referred to as the "Seguin Bank," by letter, sent the note to the Citizens' State Bank of Ganado, saying that they had written to Mr. Fred Mauritz, to whom they had transferred the note, and requesting that the bank notify him that the note had been sent to it, and instructed the bank to deliver the note and transfer to Mauritz upon payment of $933.30. Mauritz refused to make the payment and take the note, and on the 7th day of July, 1923, wrote the Seguin Bank to that effect, and said to the bank that, if it would advise him as to what it would take for the note, he would take the matter of its purchase under consideration, and saying further:

"We will have to foreclose, or get a deed from Mr. Smith, if we do not otherwise get matters shaped up. There is quite a bill of taxes run up on the land, and if you make us a proposition, please take that into consideration."

On the 14th day of July, 1923, the Ganado Land Company wrote the Seguin Bank, saying that Mr. Fred Mauritz had handed to the Ganado Land Company a letter from it, with the request that the Ganado Land Company investigate the matter of the purchase of the note, and saying further that the Seguin Bank would hear from Mr. Mauritz in a day or two.

On the 29th day of October, 1923, the Seguin Bank wrote Fred Mauritz that it would take $573.30, less taxes owing on the 57.33 acres of land for the note. In reply to the above-mentioned letter T. N. Mauritz, under the firm name of "Mauritz Bros.," a firm composed of T. N. and Fred Mauritz, wrote the Seguin Bank, acknowledging receipt of its letter of October 29, 1923, and said that they had decided to take over the 57 acres of land; requested the bank to prepare necessary papers to transfer the note, and send the same to the Citizens' State Bank of Ganado.

On December 28, 1923, the Seguin Bank wrote the Ganado Bank, saying that at the request of "Mauritz Bros." it was sending a transfer of the note and the vendor's lien on the 57 1/3 acres of land, dated October 17, 1918, to Fred Mauritz, and saying that the sum to be paid by Mauritz was $573.33, less taxes due on the land. On the same day, said Seguin Bank wrote Fred Mauritz, informing him that it had sent said transfer to the Ganado Bank.

On August 2, 1924, the president of the Seguin Bank wrote the Ganado Land Company, appellant in the present case, saying:

"We will sell you the John Smith land notes real cheap, just as cheap as we offered them to Mauritz Bros., which was $10 per acre for the land, and the papers are at the bank there at Ganado, and transfer already made to Mauritz, and you can get them to transfer to you." (Italics ours.)

To the letter last mentioned, the Ganado Land Company, on August 12, 1924, wrote the Seguin Bank that it was working on the proposed transaction and thought that something definite would soon take place. On September 1, 1924, the Seguin Bank acknowledged receipt of the letter last mentioned, asking the Ganado Land Company if it had "so far done anything," and saying that it, the bank, would have to bring suit very soon, unless Smith would convey the land to it, and therefore it was writing to the Ganado Bank to send the note and other papers back to it, in case nothing was done in the next few days, so that it would be able to file the necessary suit to protect itself against the note becoming barred by limitation, in case the conveyance from Smith could not be obtained. It further asked the Ganado Land Company to confer with Fred Mauritz as to the status of the matter.

Several letters passed between the Seguin Bank and parties at Ganado, including the Ganado Land Company, from September 1, 1923, to September 4, 1923, the contents of which will not be stated, as we do not think they throw any necessary light on the matters involved. But on the 4th day of September, 1923, Mr. Donegan, for the Seguin Bank, wrote the Ganado State Bank, saying:

"I am sending the land company a carbon of this letter for their information. We also notice that the note will not be barred until October 17th, and will be willing for the papers to be held 20 days from this date awaiting developments, and with the idea that something may be completed before then."

After the receipt by the Ganado Bank of the letter last mentioned, Fred Mauritz, a director of the Ganado Land Company, to whom the note had been transferred tentatively prior to the negotiations between the Seguin Bank and the Ganado Land Company relative to the sale of the note to said Land Company, before the present suit was brought, on September 6, 1924, transferred the note to the Ganado Land Company, and thereafter, on the 23d day of September, 1924, T. N. Mauritz, as president of the Ganado Land Company, wrote Donegan as follows:

"We are handing you herein our draft in amount of $188.25, and which is to take up the note against the John Smith land.

"The Ganado Land Company finally decided to take over the note and they have figured that on the basis of $10 per acre for the land, less taxes accrued, leaves $188.25 due you, and which is per your former proposal.

"We are inclosing herein statement showing what the taxes are.

    "Very truly
                                "T. N. Mauritz, President."
                

Thus it is shown that the Ganado Land Company, within the 20 days allowed it for acceptance of the proposition of the Seguin Bank, and before the suit was filed, became the owner of the note, and after such acceptance, and within the 20 days so allowed, notified the Seguin Bank that it had accepted its proposition and was sending with such notice the purchase price of the note.

On the 6th day of September, 1924, and after the note hereinbefore mentioned had been transferred to the Ganado Land Company, a Texas corporation, said corporation filed its original petition complaining of John S. Smith and wife, Johnie, and J. E. Harmon. Its suit was for recovery upon the note hereinbefore described, which was set out in full in the petition, and upon the guaranty on the back of same, and for a foreclosure of the vendor's lien retained on the 57 1/3 acres of land, described in the petition, to secure payment of said note.

On the day the petition was filed the plaintiff sued out a writ of attachment which was levied on certain lands belonging to J. E. Harmon. On the 18th day of February, 1925, the plaintiff filed its first amended petition upon which it went to trial, which made substantially the same allegations and prayer as was made in the original petition, and, in addition thereto, it prayed for a foreclosure of its attachment lien on the land of J. E. Harmon.

On the 28th day of September, 1925, Smith and wife filed their answer, upon which they went to trial, and therein prayed that the suit of plaintiff be abated, because (1) plaintiff sued as "the Ganado Land Company," when its real name is "Ganado Land Company"; (2) that at the time of the filing of the original petition the plaintiff was not the owner of the note sued on, nor the lien retained to secure same; (3) that the plaintiff was a corporation organized for the purpose of promotion of immigration, and therefore its acquisition of the note and lien was ultra vires and void. They demurred generally to the petition. They specially excepted to plaintiff's first amended petition filed on the 18th day of February, 1925, upon the grounds that it showed on its face that the note sued upon and the lien retained to secure its payment was barred by the four years' statute of limitation at the time said amended petition was filed. They pleaded a general denial, coverture of the wife at the time of execution of the note as against a personal judgment against her, and limitation of four years in bar of any recovery.

On the 28th day of September, 1925, defendant J. E. Harmon filed his answer, adopting the answer of Smith and wife, and, in addition thereto, specially excepted to the petition upon the ground that it was not shown upon its face that his guaranty on the note was made before the note matured, or that the plaintiff was a bona fide holder of the note in due...