McLane v. San Antonio Nat. Bank

• Decision Date: 02 April 1902
• Citation: 68 S.W. 63
• Parties: McLANE v. SAN ANTONIO NAT. BANK.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

68 S.W. 63

McLANE v. SAN ANTONIO NAT. BANK.¹

Court of Civil Appeals of Texas.

April 2, 1902.

Appeal from district court, Bexar county; J. L. Camp, Judge.

Suit by the San Antonio National Bank against H. H. McLane and others. From a judgment for plaintiff, defendant McLane appeals. Reversed and rendered.

James Raley, for appellant. Denman, Franklin & McGown, for appellee.

NEILL, J.

This suit was brought by the San Antonio National Bank on December 31, 1900, against Mary J. Mackey, independent executrix of the estate of Nelson Mackey, deceased, and H. H. McLane, primarily to recover a personal judgment against Mrs. Mackey, as executrix, upon certain notes executed on the 28th day of December, 1892, by her testator to J. S. Alexander, and by him assigned to appellee, and to foreclose a vendor's lien, expressed on the face of the notes, upon certain parcels of real property, or, in the alternative, to correct and reform a decree of June 7, 1898, entered in the district court of Bexar county, Tex., in suit No. 2,397, styled "San Antonio National Bank vs. N. Mackey et al.," upon the ground of an erroneous description of the property upon which a lien by said decree was foreclosed. The appellee sets out in full the decree sought to be reformed and corrected by this suit. It appears from the decree incorporated in the petition that the San Antonio National Bank was the plaintiff in the suit wherein it was rendered, and that N. Mackey and a number of other parties were defendants, and that H. H. McLane was an intervener. By it the San Antonio National Bank recovered on two promissory notes, of $2,500 each, executed by N. Mackey to J. S. Alexander, and assigned by Alexander to the bank, and the intervener, H. H. McLane, recovered on six promissory notes, of $2,500 each, executed by N. Mackey to J. S. Alexander, and assigned by him to McLane. After adjudging the respective amounts in favor of the bank and intervener, the decree recites that the notes were given as a part of the purchase money of certain real estate, which is specifically described therein. It then decrees that the debts of the San Antonio National Bank and of intervener, H. H. McLane, are valid and subsisting, equal and coextensive, vendor's liens upon all the property described, and forecloses against the defendants, N. Mackey, Hugo Schmeltzer Company, Reagan Houston (assignee of Sam Maverick), Dan Oppenheimer Anton Oppenheimer, Mrs. J. Kalteyer (executrix of the estate of George Kalteyer, deceased), Nelson Mackey, Jr., and Ira Lora, in favor of the San Antonio National Bank and intervener, H. H. McLane, their lien upon said real estate, and decrees that an order of sale shall issue to the sheriff or any constable of Bexar county, Tex., directing him to seize and sell the property under execution to satisfy said judgment, and that the proceeds of sale shall be directed first to the payment of the costs of suit, and the balance shall be paid to the San Antonio National Bank and intervener, H. H. McLane, in proportion to the amount of their respective judgments, until both said judgments are satisfied, and the balance, if any, shall be paid to Nelson Mackey. After copying in its petition the foregoing described decree, the appellee alleges that it and H. H. McLane, in whose favor said judgment was rendered, did not then have, and never had, a vendor's lien upon the property described in said decree, but that, in truth and in fact, the vendor's lien held by them to secure their respective indebtedness was upon lands described in the first count of the petition, which are separate and distinct tracts of land from the land described in said decree, except as to the western half of O. C. L. 176, which said tract, it alleges, was subject to said vendor's lien, and the lien properly foreclosed thereon; that said decree was entered in the aforesaid cause through a mutual mistake of the San Antonio National Bank, H. H. McLane, and N. Mackey, deceased, the bank having been led to believe that the vendor's lien attached to the land described in said decree, through the representations of H. H. McLane in an intervention filed in said cause; that, if the decree was not entered through the mutual mistake of the several parties, it was fraudulently entered through the misrepresentation of the defendant H. H. McLane, who wrongfully misled the San Antonio National Bank and N. Mackey into believing that the lien attached to said property described in the decree of foreclosure, when in truth and in fact it did not attach, and said vendor's lien never, in truth, covered said property, and by reason of said false and fraudulent representations on the part of H. H. McLane, as set out in his petition of intervention above referred to, plaintiff was misled by said representations, which were known by H. H. McLane to be false, and were fraudulently made by him for the purpose of misleading plaintiff, the object and purpose of McLane in so misleading it being to foreclose the vendor's lien upon property other than that on which plaintiff had a valid vendor's lien, in order that McLane might acquire an unincumbered title to the property described in plaintiff's petition; and that McLane thereafter acquired, through foreclosure and sale under a writ of attachment in a cause wherein H. H. McLane was plaintiff and A. A. Alexander was defendant, title thereto. The alternative prayer in the petition is as follows: "That upon hearing hereof, the judgment entered in said cause above set out be corrected and reformed in accordance with the truth and facts above set forth, and the vendor's lien in favor of H. H. McLane and the San Antonio National Bank be here foreclosed for full amount of said judgment upon the property described in the first count of plaintiff's petition, against all of the defendants herein, and that this plaintiff have and recover of and from the defendant H. H. McLane all costs in this behalf incurred, and such other relief, general and special, as the nature of this case may demand." Mary J. Mackey, the executrix of N. Mackey, answered, admitting appellee's right to recover upon either prayer. The appellant, H. H. McLane, after interposing several exceptions to appellee's petition, which seem never to have been presented to the court, nor acted upon, answered specially, denying any fraud on his part, or mistake in the original decree; by pleading stale demand; the statute of two years' limitations, and that it was estopped by its own negligence from asking the court to correct the mistake, if any there were, in the original decree; and, further, that said judgment was entered after the fullest consideration and discussion on the part of Nelson Mackey, the appellee, appellant, and their attorneys; that the description of land in said judgment was as well known to appellee since the date thereof, of June 7, 1898, as it is now, and that no effort was made by it to set aside or correct any mistake until the filing of the petition in this case; and that appellee's action is barred by lapse of time and its negligence, and by the law of estoppel. The case was tried by the court without a jury, and, upon hearing the evidence, the judgment asked for in the first count of appellee's petition was denied, and by the second count the relief prayed for was granted. From its judgment, changing and so amending the original decree set out in appellee's petition as to set aside the foreclosure on most of the land, and substitute for it a foreclosure upon the premises described in the first count of appellee's petition, this appeal is prosecuted.

Conclusions of Fact.

The evidence in this case shows beyond dispute that the notes sued on by appellee were the same notes upon which it obtained judgment against Mackey on the 17th day of June, 1898; that the land upon which the decree of foreclosure was had in that suit was the land that was described both in McLane's petition of intervention and in a supplemental petition of appellee, the plaintiff in that suit; that the description of the land was obtained by McLane's attorney from N. Mackey, and inserted in his plea of intervention under the bona fide belief that it was the land for which the notes held by himself and the bank were given by N. Mackey to J. S. Alexander for the purchase money thereof, and upon which they each had a vendor's lien. The appellee's attorney who represented him in that case, without making any effort to obtain the description of the land upon which appellee's lien existed, copied in a supplemental petition the description thereof as set out in intervener's pleadings, and prayed for a foreclosure of the land as described. The land upon which the foreclosure was had is that described in the pleadings of both parties, and it appears from the decree itself that it was rendered after hearing the testimony introduced by the parties to the suit. There is no evidence of any fraud or bad faith on the part of either McLane or his counsel in describing the land, or of any intention on the part of either of misleading appellee or its counsel as to the true description of the land upon which the lien existed. If there were a mistake as to the description in the decree, it was a mutual one, for which appellee and appellant were equally responsible. Either appellee or appellant could, by the exercise of ordinary care, have ascertained and obtained, before the decree was rendered, a proper description of the premises upon which the lien sought to be foreclosed existed. Both were negligent in this respect, and, if there is any difference in the degree of their negligence, it seems to us that appellee or its counsel was the most negligent; for appellant's counsel did try to obtain a proper description of the land, though he may have failed in his effort, but appellee used no effort whatever to obtain it. We believe that the evidence shows that there was such a misdescription of the land in the decree as is alleged...