J. R. Milam Co. v. First Nat. Bank, 872.

• Decision Date: 24 April 1930
• Docket Number: No. 872.,872.
• Citation: 29 S.W.2d 480
• Parties: J. R. MILAM CO. et al. v. FIRST NAT. BANK IN GLEN ROSE et al.
• Court: Texas Court of Appeals

29 S.W.2d 480

J. R. MILAM CO. et al. v. FIRST NAT. BANK IN GLEN ROSE et al.

No. 872.

Court of Civil Appeals of Texas. Waco.

April 24, 1930.

Rehearing Denied June 19, 1930.

Appeal from District Court, Somerville County; O. B. McPherson, Judge.

Suit by the First National Bank in Glen Rose against the J. R. Milam Company and others. From the judgment, defendant named appeals.

Reversed and remanded.

Spell, Naman & Penland, of Waco, for appellants.

E. A. Rice, of Cleburne, for appellees.

STANFORD, J.

This suit was brought by the First National Bank in Glen Rose against J. R. Milam Company, a corporation, C. A. Milam, C. A. Wirt, and Geo. P. Snyder. Plaintiff alleged it was organized as a national bank on January 24, 1928; that prior to said date the First National Bank of Glen Rose was a national banking corporation; that defendant, C. A. Milam, was then and at all times theretofore the president of said bank and was in active control and management of same, and that said defendant, C. A. Milam, was likewise president of, and was in active control and management of the said J. R. Milam Company, a private corporation, and that both said bank and said J. R. Milam Company had their places of business in Glen Rose, Tex.; that on April 19, 1911, the Exchange National Bank of North Fort Worth, Tex., conveyed to defendant C. A. Wirt a tract of land in Somerville county of 355¼ acres, and in payment therefor the said C. A. Wirt executed his ten notes for $367.50 each; that said First National Bank of Glen Rose afterwards acquired said notes and the liens securing same; that said notes were renewed from time to time until said indebtedness on about July 15, 1925, amounted to $7,115, at which time C. A. Wirt and wife deeded, or intended to deed, said land to the First National Bank of Glen Rose in full settlement of said note, but by reason of the acts of the agents of J. R. Milam Company, said company was named as grantee in said deed; that on January 24, 1928, the First National Bank of Glen Rose, being insolvent, was taken over by plaintiff herein, the First National Bank in Glen Rose, including all its assets, etc.

The J. R. Milam Company alleged that the deed from Wirt and wife to it of July 15, 1925, was made to satisfy a note it held against Wirt for $6,585. The record shows that very soon after the J. R. Milam Company acquired said deed, said company placed a mortgage of $10,000 on said land with defendant Geo. P. Snyder, who was made a party to this suit.

The relief sought by plaintiff bank was to reform the deed of July 15, 1925, and to recover said land, or in the alternative, to recover on its $7,115 note against Wirt and to foreclose its vendor's and deed of trust liens on the land. In the interest of brevity, we will not set out the pleadings more fully, but will say the pleadings are sufficient to raise all the issues made by the evidence.

In response to special issues the jury found:

(1) That the First National Bank of Glen Rose did acquire the land lien indebtedness represented by the $367.50 note introduced in evidence by plaintiff.

(2) That the land lien indebtedness represented in the land note of $277.50, due December 1, 1917, was acquired by the First National Bank of Glen Rose.

(3) That the land lien indebtedness represented in the $277.50 land note due December 1, 1918, was acquired by said bank.

(4) That C. A. Wirt and wife conveyed the 355¼ acres of land by their deed of date July 15, 1925, for the purpose of satisfying the $7,115 note held by the bank.

(5) That the $7,115 note, dated September 23, 1924, introduced in evidence by plaintiff, represented money used in the purchase of the vendor's lien indebtedness against the 355¼ acres of land.

(6) That the reasonable annual rental value of the 355¼ acres of land from and since July 15, 1925, is the sum of $200 per annum.

(7) That at the time of the execution of the deed by C. A. Wirt and wife on July 15, 1925, J. C. Montgomery represented to C. A. Wirt that the execution of said deed would be in satisfaction of the Wirts' indebtedness to the First National Bank of Glen Rose.

(8) That the said defendant C. A. Wirt was induced by such representation to execute said deed of July 15, 1925.

The defendant C. A. Milam having been dismissed from the suit, the court entered judgment upon the above findings of the jury for the title and possession of said land, and judgment for $600 against the defendant J. R. Milam Company as the rental value for the use of the premises for three years. J. R. Milam Company alone has appealed, and presents the record here for review.

Under its third, fourth, and fifth propositions, appellant contends that the findings of the jury to the first, second, and third special issues, to the effect that the bank acquired one of said vendor's lien notes for $367.50 and two for $277.50 each, were unsupported by any evidence. Under its thirteenth proposition appellant contends the finding of the jury to the effect that the $7,115 note held by the bank represented money used in the purchase of said vendor's lien indebtedness against the land involved, was wholly unsupported by any evidence. As all these propositions challenge the sufficiency of the evidence to support the findings of the jury, we will dispose of all of them together.

The record shows that C. A. Milam became president of the First National Bank of Glen Rose in 1907 or 1908, and that he continued as president, having the active control and management of said bank, up to January 24, 1928, when it was taken over by the First National Bank in Glen Rose. About the same time C. A. Milam became president of the First National Bank of Glen Rose in 1907, he also became president and general manager of J. R. Milam Company, a mercantile corporation, and has continued as president and general manager of said latter corporation to the present time. In 1911, C. A. Wirt, a customer of the bank, which was the only bank in Glen Rose, bought the 355¼ acres of land in controversy from a bank in Fort Worth, and in payment therefor executed ten notes for $367.50 each, one maturing each year. As these notes matured they were sent to the bank in Glen Rose for collection, and the evidence was sufficient to show that the bank took up some of said notes for C. A. Wirt, and carried same for him. One of this series of notes, dated April 19, 1911, and due December 1, 1914, for $367.50, was found in the possession of the bank and by it introduced in evidence. A part of the first series of notes for $367.50 each were extended by the Fort Worth bank by renewal agreement, and ten new notes for $277.75 each given in lieu thereof. Two of these renewal notes, dated December 1, 1916, and due December 1, 1917 and 1918, respectively, for $277.75 each, were in possession of plaintiff bank and put in evidence by it. The evidence also shows that on February 6, 1919, C. A. Milam, acting for both the First National Bank of Glen Rose and J. R. Milam Company, took a deed of trust from C. A. Wirth and wife on the 355¼ acres of land in controversy to secure the payment of two notes due said bank, one for $3,750 and another for $1,174, both executed by C. A. Wirt, and also two notes, one for $1,270 and another for $929.90, executed by Wirt to J. R. Milam Company. With respect to this indebtedness of C. A. Wirt to the bank for the total of $4,924.50, secured by said deed of trust, C. A. Milam testified as follows:

"Of course, as president of J. R. Milam Company, and as president of the First National Bank of Glen Rose, I got this deed of trust executed. I never did have Mr. Wirt renew that deed of trust to any trustee in favor of the bank. * * * This renewal agreement from Mr. Wirt and wife, dated February 1st, 1924, I had that prepared. It is to J. R. Milam Company. * * * When I took this renewal agreement I dropped the bank out and put J. R. Milam...