Hittson v. State Nat. Bank of Ft. Worth

• Decision Date: 19 December 1890
• Citation: 14 S.W. 993
• Parties: HITTSON v. STATE NAT. BANK OF FT. WORTH.
• Court: Texas Supreme Court

Page 993

14 S.W. 993

HITTSON v. STATE NAT. BANK OF FT. WORTH.

Supreme Court of Texas.

December 19, 1890.

On rehearing. For former report, see ante, 780.

HENRY, J.

In a motion for rehearing, the appellee calls our attention to the fact that William Hittson, the appellant, was examined at his own instance as a witness on the trial of the cause, and voluntarily testified with regard to the mortgages held by him on the property of Jesse Hittson; and, in effect, that said Jesse was insolvent. Among other things he said: "Prior to the time of my signing this note, he owed me $81,000, and the interest on that money for 12 months, and I held a mortgage for the security of my money on the H. I. T. brand of cattle, to secure the purchase money. I also had a mortgage on other cattle for $17.250, is my recollection. I was on his notes for $7,250, to a man by the name of McConnell, and then some notes to Gregory, Cooley & Co. for $10,000, and McConnell's note came due, and he sent his lawyer to me and told me, `Jesse Hittson has got some of his property mortgaged, and you have got these debts to pay. You had better be looking out for something to pay them.' I took a mortgage on Jesse's cattle to secure me against the payment of those notes, on pretty much all the cattle he had. His mother had a mortgage together with me on them. The total amount of the mortgages we took the last time amounted to $102,250." The witness testified that himself and the mother of Jesse Hittson then owned the said mortgaged property. McCart, a witness for defendant, testified, without objection, that he told Lynn "that William Hittson had got all the property of Jesse Hittson, and that he ought to sign it," (the note in controversy,) and that when negotiating with William Hittson, to persuade him to sign said note, he said to him: "Jesse Hittson has transferred to you all the property he has got in the world, and Mr. Reed and Mr. Lynn think you ought to sign that note. Jesse Hittson has nothing, and you have all his property." Our attention was not directed to this evidence in any manner by the briefs of counsel, and I failed to observe it. Our opinion that the evidence about the mortgage was not pertinent to any issue made by the pleadings; that it was calculated to exert an improper influence upon the jury; and that it should have been excluded, if objected to, and that the failure to exclude it, if it had been objected to, would have been error, requiring a reversal of the...