Harris v. Cain

• Decision Date: 11 December 1905
• Citation: 91 S.W. 866
• Parties: HARRIS v. CAIN et al.
• Court: Texas Court of Appeals

91 S.W. 866

HARRIS v. CAIN et al.

Court of Civil Appeals of Texas.

December 11, 1905.

Appeal from District Court, Smith County; R. W. Simpson, Judge.

Action by W. G. Cain against J. T. Harris and others. There was a judgment for defendant Augusta Schuh, and for plaintiff against defendants A. Olfenbuttel and J. T. Harris and for defendant J. T. Harris against defendant A. Olfenbuttel, and defendant J. T. Harris appeals. Affirmed.

Rehearing denied.

T. B. Butler, for appellant. Cain & Knox, for appellees.

PLEASANTS, J.

Appellee brought this suit against A. Olfenbuttel and Mrs. Augusta Olfenbuttel upon three promissory notes for the sum of $1,000 each, executed by said A. Olfenbuttel in favor of T. R. and J. H. Bonner. These notes were given in part payment of the purchase money of a lot and improvements thereon situate in the city of Tyler. They were endorsed by the Bonners in blank, and had passed through the hands of several owners before coming into the possession of appellee and a renewal and novation of the contract as to the time and manner of payment had been indorsed thereon by the maker. The petition alleges that the amount due on the notes at the time suit was brought was $812.90 and that $1,606.65 would later become due thereon. The prayer is for recovery of said sum of $812.90 with foreclosure of the vendor's lien against the maker of the notes and Mrs. Olfenbuttel, who the petition alleges is asserting some character of title or claim to the property. Plaintiff also prays that the judgment foreclosing his lien be so framed as to protect the lien for the unmatured portion of the notes, and for equity and general relief.

The defendant Augusta Olfenbuttel, who, prior to the time of the filing of her answer, had been divorced from Olfenbuttel and had married A. Schuh, joined by her husband, answered by general demurrer and general denial and by special plea, in which it is averred in substance: That the notes sued on had been paid and discharged by the defendant A. Olfenbuttel long prior to the time that they came into the possession of plaintiff. That at the time said notes were so paid she was the wife of said defendant and the property, in part payment for which the notes were executed, was the community homestead of said defendant and herself. That when said notes were so paid they were owned and held by the firm of Mayer & Schmidt and were by them delivered to Olfenbuttel for cancellation, but that without notice to her, and in fraud of her homestead rights in said property, he negotiated and sold said notes to J. T. Harris and the East Texas Loan & Savings Association. That prior to the institution of this suit she had been divorced from said Olfenbuttel, and that in the divorce proceedings the property in question had been set aside to herself and children as a homestead so long as she should elect to use it as such. And that it was her homestead at the time the answer was filed, though she was temporarily residing in Dallas, Tex. She prayed that the lien asserted by plaintiff be held void, and the property described in the petition discharged therefrom.

In reply to this answer the plaintiff filed a supplemental petition in which, after excepting generally and specially and denying the truth of the facts averred, he alleges that he purchased the notes for a valuable consideration from J. T. Harris without any notice of the facts averred in said answer, and further "that the said Harris warrant the genuineness of said notes and lien, and if it be true, as alleged by the defendants, that said notes had then been paid off and discharged and said lien satisfied, that then, and in that event, he, the said J. T. Harris, is liable to plaintiff for such amount of money or the value of such proportion of said lien as may be lost by this plaintiff in case the said defendants should recover a judgment in accordance with their said allegations. To the end, therefore, that said J. T. Harris may defend the allegations made by the said defendants and respond to this plaintiff in such damages as he may suffer in case such allegations are shown to be true, plaintiff prays that said Harris be made a party defendant to this suit; that he be served with process to answer herein and in case plaintiff should fail to recover against the said defendant that he have a judgment over against the said J. T. Harris for his damages by reason of the premises, and for all costs of suit and such other and further relief, either in law or equity, as may be meet and proper."

The defendant A. Olfenbuttel did not answer plaintiff's petition, but filed exceptions and a general denial to the answer of his codefendant, Mrs. Schuh.

J. T. Harris answered by general and special exceptions and general denial, and by special pleas set up the statute of two and four years limitation in bar of plaintiff's suit against him. This answer concludes with the following plea: "And further answering herein, the defendant shows to the court that he never at any time, for himself, individually, owned or sold the said notes sued on, to the plaintiff, W. G. Cain; that said notes were the property of the East Texas Loan & Savings Association, of which this defendant was secretary and treasurer and that he did on or about the 7th day of December, 1898, negotiate, sell, and deliver said notes to the said W. G. Cain acting in his fiduciary capacity for said Loan and Savings Association, and not for himself individually, wherefore the defendant having fully answered herein, prays that he be discharged with his cost. Defendant prays judgment over against A. Olfenbuttel for any judgment that may be rendered against him, the loan association having purchased from Olfenbuttel."

In additional supplemental petitions filed by plaintiff, he excepted generally and specially to the answers of Mrs. Schuh and J. T. Harris, and specially denied the truth of the facts averred in said answers. No amendment of the original petition was filed and no pleading filed by plaintiff asked for any relief against A. Olfenbuttel, in addition to that prayed for in the original petition. The cause was tried in the court below without a jury and judgment was rendered in favor of defendants Schuh, denying a foreclosure of the lien claimed by plaintiff, and in favor of plaintiff, against the defendants A. Olfenbuttel and J. T. Harris, for the sum of $2,342.04, with direction that execution thereon first issue against Olfenbuttel. Judgment was also rendered in favor of Harris, against Olfenbuttel for such sum as he might be required to pay plaintiff upon the judgment rendered in his favor against Olfenbuttel and Harris. From this judgment Harris alone has appealed.

The evidence sustains the finding of the trial court that the notes sued on were paid and satisfied by the defendant A. Olfenbuttel and the vendor's lien thereby discharged and were thereafter again put in circulation by said defendant and sold by him to the East Texas Loan & Savings Association. It further appears from the evidence that at the time the notes were sold by Olfenbuttel to said association the property upon which the vendor's lien had theretofore existed was the community homestead of said defendant and his wife, Augusta Olfenbuttel, and that it has continued to be Mrs. Schuh's homestead, having been set aside to her as such, in divorce proceedings between her and said Olfenbuttel. The plaintiff purchased the notes from J. T. Harris without any notice of the fact that they had been previously paid and upon the representation of both Harris and Olfenbuttel that they were valid and subsisting obligations secured by a valid vendor's lien. The $2,342.04 for which plaintiff obtained judgment is the amount he paid Harris for said notes with interest thereon from the time of such payment, less the payments subsequently made on the notes by Olfenbuttel. Appellee purchased the notes from Harris in December, 1898. He never heard of any claim on the part of the defendant, Mrs. Schuh, or any one else, that the notes had been paid until sometime in the year 1903, after this suit was brought. Harris was made a party in January, 1904. The notes all recite that they were executed in payment of the purchase money of a lot with improvements thereon situated in the city of...