Jackson v. Fawlkes

Decision Date21 June 1892
Citation20 S.W. 136
PartiesJACKSON v. FAWLKES <I>et al.</I>
CourtTexas Supreme Court

T. H. Strong, for appellant. Sims & Snodgrass, for appellees.

GARRETT, P. J.

This is an action on a promissory note and to foreclose a vendor's lien. The suit was originally brought by H. A. Fawlkes, who held the note by indorsement from the payee, W. B. Brown; but he died, and the appellee, Juliet Fawlkes, made herself a party as his administratrix. The defendant, Jackson, answered by a general demurrer, general denial, and a special plea of failure of consideration. W. B. Brown, the payee of the note, intervened, with leave of the court, and set up that the note had been transferred to Fawlkes as collateral security for a debt of less amount than the note, and prayed to be protected by the judgment that should be rendered. In a supplemental petition the plaintiff admitted that the note was so transferred, and set out the debt for which the note sued on was held as collateral. Defendant demurred to these pleadings, because they showed only a partial assignment of the note, and that the plaintiff could not maintain a suit thereon. The demurrers were overruled, and trial before a jury resulted in a verdict in favor of the plaintiff, and judgment thereon that she recover the amount of the note and interest, with foreclosure of lien on the land described in the petition. The judgment also ascertained the amount due by the intervener for which the note was held as collateral security, and directed the sheriff to pay the balance of the judgment after satisfying that amount over to the intervener.

There was no error in overruling defendant's demurrer that there had been only a partial assignment of the note, because the pleading showed that the note itself had been transferred by a written indorsement thereon, and it can make no difference that the transfer was only as collateral security for a debt less in amount than the note. Such a transfer is in due course of trade and for a valuable consideration. Kauffman v. Robey, 60 Tex. 308. We think that the interest of W. B. Brown in the subject-matter of the suit was such that it was not error to allow him to intervene therein. He was entitled to a considerable portion of the money to be recovered, and, although his petition does not show any special equities why he should be permitted to intervene, still he had an interest in the fund to be recovered, and there can be no reason why he should not be allowed to settle his right thereto in this suit, rather than in the probate court, in the estate of H. A. Fawlkes, deceased. But we do not think that he should have been permitted to recover his costs of the defendant, or of the plaintiff either. The costs of the intervention should have been adjudged against him.

The land upon which the plaintiff sought to foreclose a vendor's lien was described in the pleadings of both plaintiff and intervener as follows: "A certain parcel or tract of land situated in said Coleman county, Tex., and known as a part of I. & G. N. R. R. Co. survey of land, of 271½ acres, located by virtue of certificate No. 75, and patented to N. E. Hoy, assignee of said I. & G. N. R. R. Co., August 18, 1876, by patent No. 332, vol. 28, and is more particularly described by field notes and metes...

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5 cases
  • Wise v. Boyd
    • United States
    • Texas Court of Appeals
    • November 12, 1924
    ...the suit and recover on the note is not open to question. McMillan v. Croft, 2 Tex. 397; Brown v. Chenoworth, 51 Tex. 469; Jackson v. Fawlkes (Tex. Sup.) 20 S. W. 136; Gray v. Altman (Tex. Civ. App.) 149 S. W. 760; Negotiable Instruments Act, §§ 51, 191 (Vernon's Texas Statutes, 1922 Supple......
  • Riley v. Palmer
    • United States
    • Texas Court of Appeals
    • January 11, 1922
    ...assignment or by lien thereon, it follows, we think, that he had a right to intervene in this suit and protect such interest. Jackson v. Fawlkes (Sup.) 20 S. W. 136; Field v. Gantier, 8 Tex. 74; Goldman v. Blum, 58 Tex. 630; Whitman v. Willis, 51 Tex. 421; G., H. & S. A. Ry. Co. v. Ginther,......
  • Wilkinson v. First Nat. Bank
    • United States
    • Texas Supreme Court
    • February 6, 1929
    ...the legal holder of such note and the debt of which it was evidence (Kauffman v. Robey, 60 Tex. 308, 48 Am. Rep. 264; Jackson v. Fawlkes [Tex. Sup.] 20 S. W. 136) and holder of the lien securing such debt (Solinsky v. Fourth Nat. Bank of Grand Rapids, 82 Tex. 244, 17 S. W. 1050; Flanagan v.......
  • Masterson v. Ross
    • United States
    • Texas Court of Appeals
    • January 16, 1913
    ...such transfer is in due course of trade and for a valuable consideration. Kauffman v. Robey, 60 Tex. 308, 48 Am. Rep. 264; Jackson v. Fawlkes (Sup.) 20 S. W. 136. From the foregoing authorities, then, it is apparent that the transfer of the notes by Pye to Ross, together with the lien secur......
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