Moran v. Wheeler
Decision Date | 04 April 1894 |
Citation | 26 S.W. 297 |
Parties | MORAN v. WHEELER et al.<SMALL><SUP>1</SUP></SMALL> |
Court | Texas Court of Appeals |
Appeal from district court, Mason county; W. M. Allison, Judge.
Action by Martin Moran against W. E. Wheeler and others upon a note, and to foreclose a lien. Plaintiff obtained only a personal judgment against one defendant. Plaintiff appeals. Modified.
M. Fulton, for appellant. C. von Carlowitz and Wright & Summerlin, for appellees.
This suit was brought by the appellant against W. E. Wheeler, as the maker, and Henry Kensing, Franz Bernhard, and Max B. Mayer, as indorsers, of the promissory note set forth in our first conclusion of fact, and to foreclose, as against Wheeler and the Land Mortgage Bank of Texas, Limited, a lien upon certain tracts of land mentioned in the note, situated in Mason county. The plaintiff entered a discontinuance as to the defendants Bernhard and Kensing. Wheeler did not answer. Mayer answered by pleading that the plaintiff had not used the required statutory diligence to fix his liability as an indorser, and that the note sued on was barred by the statute of limitations. The Mortgage Bank answered that the land was mortgaged to it, without notice of plaintiff's alleged lien, to secure a loan of $25,000 made to it by Wheeler, and also by pleading the statute of limitations. The case was tried by the court without a jury, and judgment rendered against Wheeler for the amount due on the note, without foreclosing the lien on the land, and in favor of Mayer and the Mortgage Bank. From this judgment, Moran has appealed. The judgment in Max B. Mayer's favor is not complained of. The errors assigned complain of the court's failure to decree a foreclosure of plaintiff's alleged lien, as against Wheeler and the Mortgage Bank, and in entertaining the latter's plea of the statute of limitations, it being a foreign corporation.
Conclusions of Fact.
(1) On the 24th day of May, 1884, Henry Kensing sold and conveyed by his deed of that date, to W. E. Wheeler, survey No. 111, Gulf, Colorado & Santa Fe, scrip 1/21, patent 68, volume 73, containing 320 acres; also, survey No. 123, Houston, East & West Texas, containing 588 acres, — in part payment for which he executed and delivered to Kensing two promissory notes for $400 each, of even date with the deed, payable in one and two years from date, bearing 10 per cent. interest from date, one of which is the note sued on, and it is as follows: An express lien was retained in the deed from Kensing to Wheeler to secure the payment of said notes, which deed was duly recorded on the 26th day of October, 1886, in the records of Mason county, Tex. (2) The note sued on passed into the hands of Max B. Mayer before its maturity, and Mayer indorsed and delivered it, for value, before maturity, to the appellant, who was the owner and holder of it when this case was tried, the note never having been paid. (3) On the 20th day of October, 1886, Henry Kensing, without the knowledge or consent of Moran, executed and delivered to W. E. Wheeler his release in writing of the vendor's lien, in which he acknowledged payment of the two notes recited in said deed, which release, after being acknowledged, was on the 26th day of October, 1886, duly recorded in the office of the county clerk of Mason county. This release was executed by Kensing after the note sued on had passed out of his hands by transfer thereof for value, and after Moran had become the owner and was in possession thereof. (4) The Land Mortgage Bank of Texas, Limited, is a foreign corporation having a permit to do business in Texas, and has had since the 1st day of June, 1887, up to the time of trial of this cause in the court below, a resident agent in the state of Texas. On the 27th day of June, 1887, said Mortgage Bank loaned W. E. Wheeler $25,000 upon his note for that amount, which was then secured by a deed of trust upon a large number of tracts of land, including the two tracts sold to Wheeler by Kensing. The deed...
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Rogers v. Houston
... ... Moran v. Wheeler, 87 Tex. 179, 27 S. W. 54; Id. (Tex. Civ. App.) 26 S. W. 297. It has also been held, in an action of trespass to try title, that the ... ...
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Moran v. Wheeler
...lien. A judgment allowing plaintiff a personal judgment only against one of the defendants was affirmed by the court of civil appeals (26 S. W. 297) and plaintiff brings error. Marshall Fulton, for plaintiff in error. Wright & Summerlin, J. B. Davies, and C. Von Carlowitz, for defendants in......
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Powers v. Smith
...and of $760 as the amount of the debt thereby secured to Smith. This conclusion is not believed to be in conflict with Moran v. Wheeler (Tex. Civ. App.) 26 S. W. 297; Id. (Sup.) 27 S. W. The action of the court in refusing to foreclose the lien to cover the amount of interest beyond the leg......
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Jackson v. Bradshaw
...the justness of the debt, or by the execution of a new obligation in place thereof for such balance as may be due. Moran v. Wheeler (Tex. Civ. App.) 26 S. W. 297. The appellant having renewed the original purchase-money note by giving the one sued on, he cannot defeat the enforcement thereo......