San Antonio Nat. Bank v. McLane

• Decision Date: 13 November 1902
• Citation: 70 S.W. 201
• Parties: SAN ANTONIO NAT. BANK v. McLANE et al.
• Court: Texas Supreme Court

70 S.W. 201

SAN ANTONIO NAT. BANK v. McLANE et al.

Supreme Court of Texas.

November 13, 1902.

Error to court of civil appeals of Fourth supreme judicial district.

Action by the San Antonio National Bank against H. H. McLane and another. From a judgment of the court of civil appeals (68 S. W. 63) reversing a judgment of the district court in favor of plaintiff, plaintiff brings error. Reversed.

C. L. Bates and Denman, Franklin & McGown, for plaintiff in error. James Raley, for defendant in error.

BROWN, J.

This suit was instituted on the 31st day of December, 1900, by the plaintiff in error against H. H. McLane and Mary J. Mackey, in the district court of the Forty-Fifth judicial district of Bexar county. The plaintiff's petition alleged, in substance, that it was the owner and holder of two promissory notes executed by Nelson Mackey, each for $2,500, which were due and unpaid; that the said Mackey had departed this life; that Mary J. Mackey was independent executrix of his last will; and asked judgment against Mrs. Mackey, as executrix, for the notes. The petition alleged that the two notes sued on were given as part of the purchase money of the lands described in the petition, and that H. H. McLane claimed some interest in the said property. He was therefore made party defendant to the suit. The petition prayed for foreclosure of the lien of the notes upon the land described in the petition.

From the conclusions of fact found by the court and from the undisputed evidence in the case, we make the following statement of the facts: On the 28th day of December, 1892, J. S. and A. A. Alexander conveyed to Nelson Mackey their undivided interest in certain lands situated in the city of San Antonio, and received from the said Mackey eight promissory notes for $2,500 each, payable to J. S. Alexander; the vendor's lien being reserved in the said notes to secure the payment of the same. On October 10, 1894, the lands in question were partitioned between the tenants in common, and two parcels were allotted to Nelson Mackey,—one on account of a right he had in the lands before the purchase from the Alexanders, and the other parcel being allotted to him by virtue of his purchase from the said Alexanders. The San Antonio National Bank acquired two of the notes from J. S. Alexander, each being for the sum of $2,500, and on the 18th of January, 1896, the bank instituted suit upon the said notes against Nelson Mackey, seeking to recover against him a personal judgment, not claiming a foreclosure of the lien of said notes. On January 26, 1896, H. H. McLane, being the owner of six of the purchase-money notes made by Mackey to Alexander each for $2,500, filed his petition for intervention in the suit of the San Antonio National Bank against Mackey, in which McLane alleged that the notes held by him were given for a part of the purchase money of the lands described in his petition for intervention, and prayed for foreclosure of his notes upon the land, and also for foreclosure of the notes held by the San Antonio National Bank. The bank amended its petition, made McLane and all of the lienholders upon the land parties defendant, set up that the notes sued by it were part of the purchase money of the land and that the notes claimed by McLane were also for part of the purchase money on the said land, and asked that the lien of the notes belonging to the bank as well as to McLane be foreclosed upon the said land, and that the proceeds of the sale be distributed according to their several rights. The bank adopted the description which McLane set out in his petition for intervention as being the description of the land for the purchase money of which the notes were given. The attorney of the bank relied upon McLane's petition for a description, and in doing so made a mistake in the description of the land in this: that the land described in McLane's petition was by mistake the land which had been set apart to Mackey in his right, which existed before his purchase from the Alexanders, instead of the land which had been set apart to him in virtue of that purchase, and for which the notes were given. It was a mutual mistake on the part of McLane's attorney and the attorney of the bank. Judgment was rendered in favor of the bank and McLane each for the notes held against Mackey, and a decree was entered foreclosing the lien of all of the notes upon the land as described in the petition, and the land ordered to be sold, and the proceeds distributed in proportion to the amount of the notes held by each. The mistake was not discovered until about the 31st day of December, 1900, when the San Antonio National Bank instituted this suit, as before stated. The trial was had before the judge of the district court without a jury, who rendered judgment correcting the mistake in the former decree, and foreclosing the lien of the San Antonio National Bank upon the land described in its petition, which was the land for the purchase money of which the said notes were executed.

Mrs. Mackey acknowledged the right...