Pope v. Beauchamp

• Decision Date: 28 June 1913
• Citation: 159 S.W. 867
• Parties: POPE v. BEAUCHAMP et al.
• Court: Texas Court of Appeals

159 S.W. 867

POPE v. BEAUCHAMP et al.

Court of Civil Appeals of Texas. Amarillo.

June 28, 1913.

Rehearing Denied October 11, 1913.

Appeal from District Court, Denton County; Clem B. Potter, Judge.

Action by J. B. Pope against D. M. Beauchamp and others. From a judgment for plaintiff granting insufficient relief, he appeals. Affirmed in part and reversed and rendered in part.

V. K. Wedgeworth, of Ft. Worth, for appellant. Owsley & Owsley and Wilkerson & Wilkerson, all of Denton, for appellees.

HALL, J.

On the 17th day of January, 1910, C. T. Wright procured from appellee J. L. Rutherford a deed to the N. V. Delgado survey in Titus county, and in payment therefor delivered to Rutherford two vendor's lien notes for $5,980 each, executed January 5, 1910, by G. P. Holford to C. C. Hutcherson. These notes purport to have been given in part payment for certain land in El Paso county, known as a part of the La Prieta grant. The record shows that in purchasing Rutherford's land Wright was guilty of the grossest fraud, to which Holford and Hutcherson were doubtless parties. No sale had been made from Hutcherson to Holford, and the records of El Paso county fail to show any such deed, and there was no such land as the La Prieta grant in El Paso county. On the 20th day of January, 1910, C. T. Wright made a deed to the land in Titus county, which he had obtained from Rutherford to D. M. Beauchamp, reciting the consideration to be $14,000, of which $7,000 was stated to have been paid in cash, and for the remainder Beauchamp executed three notes, one for $3,000, due January 20, 1911, and two for $2,000 each, due January 20, 1912 and 1913, respectively. The record discloses that Beauchamp did not pay the $7,000 cash, but at Wright's suggestion signed the notes and gave them to him. Wright then executed a transfer to J. W. Maxwell of the three notes executed by Beauchamp, which transfer is dated January 20, 1910, and was filed for record on the 24th day of September, 1910. March 31, 1910, J. W. Maxwell, by written transfer, conveyed the $3,000 note and one of the $2,000 notes, which had been given by Beauchamp to Wright to Mrs. Dora Stephens, and this instrument was filed for record July 11, 1910. On October 1, 1910, Stephens and wife, by written transfer, conveyed an undivided one-fifth interest in and to said note to V. K. Wedgeworth, an attorney. This transfer was filed for record October 31, 1910. Wedgeworth, as attorney for Stephens and wife, went to Titus county about the 2d day of October, 1910, and district court convened that afternoon. He asked the clerk of the court to show him plaintiff's petition in the case of Rutherford v. Wright. On December 15, 1910, Wedgeworth borrowed $1,500 from appellant, Pope, who was also his client, executed to him a note for the amount due one year after date. Pope did not know Maxwell or Stephens. He loaned Wedgeworth $1,500, and considered it a personal transaction. On the 22d day of January, 1910, Rutherford had instituted his suit in the district court of Titus county against Holford, Hutcherson, and Wright, to cancel the conveyance of his land to Wright, and on the 24th day of the same month filed an amended petition, making Will C. Geers and D. M. Beauchamp parties to the suit, and at the same time procured to be issued in said cause a writ of injunction restraining Wright and Geers from disposing of the notes executed by Beauchamp, and on the 24th day of January, 1910, filed in the office of the district clerk of Titus county a notice of lis pendens, properly showing the pendency of said suit. On the 11th day of October, 1910, judgment was entered in said cause in favor of Rutherford, canceling the deed which he had executed to Wright, and the deed from Wright to Beauchamp, and revesting in him the title and possession of the land. This suit is instituted by appellant, Pope, as the assignee of the $3,000 note described above, executed by Beauchamp, to Wright, which note was secured by a vendor's lien, and also by deed of trust on the Titus county land. Judgment is asked against D. M. Beauchamp, as maker, J. W. Maxwell and C. T. Wright as indorsers, and the prayer is for foreclosure against J. L. Rutherford, who it is alleged is asserting some right to the premises adverse to the plaintiff. Service of process was had on all parties except Wright, and plaintiff entered a nonsuit as to him. Upon the trial before a jury the plaintiff obtained judgment against Beauchamp and Maxwell, but the jury found against plaintiff as to foreclosure upon the premises, and judgment was rendered accordingly and from the judgment denying a foreclosure against Rutherford plaintiff alone appeals.

In addition to the facts above recited, the record discloses that the transfer from Maxwell to Stephens of the three notes was in consideration of the contents of a certain billiard and pool hall, consisting of billiard tables, pool tables, chairs, and other fixtures and furniture appurtenant thereto. On December 16, 1910,...