Rogers v. Armstrong Co.

• Decision Date: 03 April 1895
• Citation: 30 S.W. 848
• Parties: ROGERS v. ARMSTRONG CO. et al.
• Court: Texas Court of Appeals

30 S.W. 848

ROGERS v. ARMSTRONG CO. et al.

Court of Civil Appeals of Texas.

April 3, 1895.

Appeal from district court, Dallas county.

Action by the Armstrong Company against M. B. Rogers, as the payee and indorser, and J. D. Robinson, as maker, of a note given as the purchase price of land secured by a vendor's lien. From a judgment for plaintiff for the amount of the note, with a foreclosure of the lien, and for defendant Rogers for the land, subject to the foreclosure, defendant Rogers appeals. Reversed.

The following statement of the nature and result of this suit is taken in part from appellant's brief: This suit was instituted in the district court of Dallas county, Tex., on the 21st day of May, 1892, by Armstrong Company, one of the appellees, against M. B. Rogers, appellant, and against J. D. Robinson, one of the appellees. Appellee Armstrong Company alleged in its original petition that it was a corporation duly incorporated; that on March 31, 1890, the appellee Robinson, by his promissory note of that date by him subscribed and delivered to appellant, for value received, promised said appellant to pay to her or her order on November 1, 1890,$1,100, with interest thereon from date of note at the rate of 10 per cent. per annum; that said note was given for a part of the purchase money of a certain tract of land situated in Dallas county, being two acres of land out of the William Bassett survey; that said tract of land had theretofore, to wit, on March 31, 1890, been conveyed by appellant to said Robinson by appellant's deed in writing, in consideration, among other things, of the note hereinbefore described, and that in said deed of conveyance a vendor's lien was reserved thereon to secure the payment of said note; that appellant on, to wit, March 31, 1890, for a valuable consideration to her paid by appellee Armstrong Company, indorsed, transferred, and delivered said note to the last-named appellee, and that said appellee was at the date of the institution of this suit the legal owner and holder of said note. It prayed for judgment for its debt, interest, and costs of suit, and a foreclosure of its lien on said land. On September 5, 1892, appellant filed her second amended original answer, which consisted of (1) a general demurrer; (2) a general denial; (3) a plea duly sworn to, charging that the note sued upon was not executed by her, or by her authority or by her consent; that the indorsement or assignment of said note (if it was indorsed or assigned, she never having seen it) was a forgery; that she never indorsed or assigned said note, nor authorized the indorsement or assignment of the same, to any person; that the deed mentioned in plaintiff's petition as having been executed by her on March 31, 1890, to said appellee Robinson, for the land in controversy, was without consideration; that on March 31, 1890 (the date of the alleged execution of said deed and note), she was, by reason of her health and the effects of medicine she had taken, mentally incapacitated to transact business; that if said transaction occurred, which she denied, she had no knowledge of it, and such state of mind existed when said note was transferred to plaintiff, and said transfer was not authorized by her, nor did she ever acquiesce in or ratify same; that said transaction was a fraud, deliberately planned by appellees for the purpose of cheating her out of the land; that the deed and note were a cloud upon her title to the land, — and she prayed for a cancellation of said deed and note, and that she be decreed the land. Appellee Robinson, who was a co-defendant with appellant in the court below, filed his first amended original answer, in which Ida Robinson, wife of said J. D. Robinson, joined her husband, making said answer her plea of intervention, and they denied all and singular the matters of fact alleged in plaintiff company's petition, except such as were...