Scott v. Brazile

• Decision Date: 16 March 1927
• Docket Number: (No. 821-4467.)
• Citation: 292 S.W. 185
• Parties: SCOTT, Commissioner of Insurance, v. BRAZILE et ux.
• Court: Texas Supreme Court

292 S.W. 185

SCOTT, Commissioner of Insurance, v. BRAZILE et ux.

(No. 821-4467.)

Commission of Appeals of Texas, Section A.

March 16, 1927.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action by M. D. Brazile against John M. Scott, Commissioner of Insurance, and others. Judgment for defendant named on his cross-action against plaintiff and his wife was reversed by the Court of Civil Appeals (273 S. W. 1013), and he brings error. Judgment of the Court of Civil Appeals reversed, and judgment of the district court reformed and affirmed.

Dan Moody, Atty. Gen., C. L. Stone and Riley Strickland, Asst. Attys. Gen., and Phillips, Trammell & Chizum, of Fort Worth, for plaintiff in error.

Ocie Speer, of Austin, and Hamp P. Abney, of Sherman, for defendants in error.

HARVEY, P. J.

This suit was brought by M. D. Brazile against the United Home Builders of America, an unincorporated association; G. G. Wright, its receiver duly appointed by the district court of Dallas county; and John M. Scott, commissioner of insurance of the state of Texas, to cancel a certain deed of trust covering a lot of land in the city of Fort Worth, and to cancel certain notes secured by such deed of trust. In the suit Scott, in his capacity as insurance commissioner, and Wright, in his capacity of receiver for said association, each, among other pleadings, filed a cross-action, in which they sought to recover of M. D. Brazile and his wife, Mrs. Annie Brazile, who was made a party to the suit, the amount of such notes, aggregating $10,474.75; and, in the alternative, sought recovery of damages on account of the forgery, fraud, and deceit committed by Mrs. Brazile, hereinafter stated. Upon the trial the trial court rendered judgment canceling said deed of trust and notes, but rendered judgment against Brazile and wife in favor of Scott, on the cause of action asserted alternatively in his cross-action, for the sum of $6,531.31 damages, being the amount of money actually procured from said association by Mrs. Brazile through forgery, fraud, and deceit, as alleged, together with 6 per cent. interest thereon. The receiver, Wright, was denied recovery on his cross-action.

Briefly stated, the facts, so far as pertinent here, are substantially as follows:

M. D. Brazile and Annie Brazile are husband and wife. Mrs. Brazile forged her husband's name to an application for a loan, and presented same to said association, the United Home Builders of America. The application having been approved, the association caused to be prepared the notes in question, aggregating in amount the sum of $10,474.75. It also caused to be prepared the deed of trust in question, which was to be signed and acknowledged by said M. D. Brazile and his wife to secure the payment of said notes, which were also to be executed by Brazile and wife. After the notes and deed of trust were drawn up, the same were forwarded to Mrs. Brazile for proper execution by herself and husband. She signed her own name to the notes as a maker, and forged the name of her husband thereto as a maker. She then forged the name of her husband, M. D. Brazile, to the deed of trust, as a grantor therein, and went before a notary and acknowledged same, as a single person, under the name of M. D. Brazile. She then went before another notary, and signed her own name to the deed of trust, as a grantor, which notary took her acknowledgment, in due form, as a married woman to such deed of trust. Certificates of acknowledgment, in due form, were made by the respective notaries, and attached to the deed of trust. When said notes and deed of trust had been signed and acknowledged by Mrs. Brazile, in her own proper person, and in impersonation of M. D. Brazile, as above explained, she delivered them to the said association, who, upon faith that such instruments were genuine in all respects, let Mrs. Brazile have thereon sums of money aggregating $5,729.22. Mrs. Brazile's husband had no knowledge of such fraud of his wife or of any of these transactions in which she participated, and did not consent thereto.

The said notes were afterwards, by the United Home Builders, duly assigned to and deposited with the commissioner of banking and...