Republic Nat. Bank of Dallas v. Zesmer, 13611.

• Decision Date: 30 March 1945
• Docket Number: No. 13611.,13611.
• Citation: 187 S.W.2d 227
• Parties: REPUBLIC NAT. BANK OF DALLAS v. ZESMER.
• Court: Texas Court of Appeals

187 S.W.2d 227

REPUBLIC NAT. BANK OF DALLAS v. ZESMER.

No. 13611.

Court of Civil Appeals of Texas. Dallas.

March 30, 1945.

Appeal from District Court, Dallas County; Sarah T. Hughes, Judge.

Suit by Republic National Bank of Dallas against I. Zesmer, administrator, estate of Sol Ackerman, deceased, to establish an indebtedness evidenced by three notes secured by chattel mortgages and one unsecured note as a secured claim against decedent's estate. The trial court by judgment approved action of the administrator in approving as a secured claim against estate balance due on the three secured notes except default attorney's fees and, as an unsecured claim, amount due on unsecured note with interest and attorney's fees, and plaintiff appeals.

Judgment affirmed.

Eugene DeBogory and W. L. Wray, both of Dallas, for appellant.

J. Manuel Hoppenstein, of Dallas, for appellee.

BOND, Chief Justice.

This suit is to establish an indebtedness as a secured claim against the estate of Sol Ackerman, deceased, in favor of Republic National Bank of Dallas, Texas.

The facts are undisputed: On May 11, 1943, Sol Ackerman executed his certain promissory note in the sum of $750 payable to the Liberty State Bank at Dallas, and, simultaneously therewith, a chattel mortgage upon one 1941 Buick 4-door sedan automobile. The mortgage provides (pertinent here) that it is given to secure the Liberty State Bank, its successors and assigns in the payment of said note, interest and attorney's fees, "as well as to secure the payment of all other indebtedness now due and owing said bank, and any and all indebtedness hereafter to become due and owing said bank, its successors, assigns or legal representatives, whether evidenced by note, overdraft, or otherwise, * * *". On June 2, 1943, Sol Ackerman, for Wonder Food Products, executed another note in the sum of $500 payable to the Liberty State Bank, and a chattel mortgage upon one 1940 Willys coupe automobile; and on July 16, 1943, executed a third note in the sum of $300 payable to Liberty State Bank, and a mortgage upon a 1929 Ford one-and-one-half ton truck. The last two mortgages are in terms, effect and tenor as is the first mortgage, having the same provision as to securing other indebtedness due and payable to the Liberty State Bank, not definitely and particularly named in the mortgage. On October 10, 1943, Sol Ackerman, for Wonder Food Products, executed a promissory note in the sum of $450 to appellant, Republic National Bank of Dallas, providing for interest and default attorney's fees, without any mortgage lien to secure its payment. This note is what the officials of the bank termed "an open note", i. e., without security.

On January 10, 1944, before any of the aforesaid notes according to their face and reading became due, Sol Ackerman died, and soon thereafter and before administration was sued out on his estate, the officials of Republic National Bank, having been advised that the Liberty State Bank held the first three above-described notes and mortgages against said estate, requested transfers thereof to their bank; thus acquiring, by duly executed assignments, the three notes and mortgages. On these assignments and the above-described note executed to the Republic National Bank, appellant bases its indebtedness, principal, interest and attorney's fees, and its claim on the mortgaged property for security, not only securing the three assigned notes from Liberty State Bank for which the mortgages were given, but, as well, the note executed to Republic National Bank,—basing such claim of security on the provision in the mortgages extending the...