Guerin v. Patterson

• Decision Date: 28 April 1881
• Docket Number: Case No. 4350.
• Citation: 55 Tex. 124
• Parties: W. E. GUERIN v. MARY PATTERSON ET AL.
• Court: Texas Supreme Court

55 Tex. 124

W. E. GUERIN

v.MARY PATTERSON ET AL.

Case No. 4350.

Supreme Court of Texas.

Apr. 28, 1881.

APPEAL from Ellis. Tried below before the Hon. Geo. N. Aldridge.

The opinion states the case.

McCormick & Templeton, for appellant.

John L. Cheek, for appellees.

BONNER, ASSOCIATE JUSTICE.

Nathan Patterson and Wilson S. Patterson, late merchants and partners under the firm name of N. Patterson & Son, doing business in Columbus, Ohio, being in failing circumstances, made a deed of assignment to appellant W. E. Guerin, of date September 23, 1877. Subsequently Wilson S. Patterson, the son, absconded, carrying with him a large amount in money, $12,280, assets of the late firm. The father, Nathan Patterson, came to Texas and purchased a tract of land near Ennis from Moses M. Allen, for which he paid him in money $200, and executed and delivered to him, payable to his order, two promissory notes, both of date June 3, 1878, one for $565, due January 1, 1879, and the other for $1,200, due January 1, 1880, both bearing interest from date, and retaining a lien upon the land to secure their payment. These notes, on the day they were executed, and almost simultaneous with their delivery, were transferred by the payee, Allen, by indorsement in blank without recourse on him. This indorsement was made in consideration of money paid to Allen through T. L. McCarty, who acted in the sale of the land as agent for both Patterson and Allen, and which money McCarty testifies that he had received at two different times from Nathan Patterson, but which had been deposited in bank in the name of McCarty. The testimony of Allen tends to prove that he received in money $50 less than the principal of the two notes, but McCarty, who was acting as his agent, swears positively that Allen received the full amount of the principal. McCarty, Allen, Nathan Patterson and an old gentleman by the name of Wilson, and who was a brother-in-law of Patterson, were present. Wilson left soon afterwards for his home in the state of Ohio, and his testimony is not taken to throw light upon the transaction. It is in evidence that after the payment of the money to Allen, Nathan Patterson picked up the notes from the table on which they were lying and put them into his pocket. As disclosed by the testimony, they were next heard of in the possession of the son, Wilson S. Patterson. They subsequently came into the possession of the assignee, Guerin, through the attorney of Wilson S. Patterson, after he had been arrested as an absconding debtor, but whether delivered up by him voluntarily or under duress, the testimony is conflicting. Guerin, as such assignee, obtained possession of the notes in May, 1878, prior to the maturity of the one for $1,200.

Nathan Patterson, subsequently to the execution of the notes, died. The notes having come into the possession of Guerin, the assignee, this suit was brought by him against Mary Patterson, the wife of Nathan Patterson, and also against his children, including the son, Wilson S. Patterson, it being alleged that there was no administration on the estate of N. Patterson, and none necessary, and it being proven that he owed no debts to Texas creditors. Guerin, the plaintiff below, alleged that he held and owned the notes as such assignee, and prayed judgment upon them and for the enforcement of the lien on the land. He further alleged that if it should be shown that they had in fact been paid, that the payment had been made out of assets of the late firm of N. Patterson & Son, to which he was entitled as assignee, and that therefore he was equitably entitled to the land as such assignee, and prayed for this in the alternative.

Judgment upon verdict of a jury was rendered against assignee Guerin, plaintiff below, from which he prosecutes this appeal.

There are fifteen alleged errors assigned. One of these is that the court erred in sustaining the demurrer of defendants, which presented the question that plaintiff Guerin could not sue as an assignee appointed by the laws of Ohio, a sister state.

The petition alleged the appointment of Guerin as an assignee, both by the deed of assignment made by N. Patterson & Son, and also by a probate court under the insolvent laws of Ohio.

It does not become necessary to decide what the laws of Ohio are in regard to the appointment of an assignee for an insolvent debtor, or what rights an assignee under such appointment would have in this state.

It is sufficient for the purposes of this appeal to say that the court below permitted...