State Nat. Bank of El Paso v. Fink

• Decision Date: 10 January 1894
• Citation: 24 S.W. 937
• Parties: STATE NAT. BANK OF EL PASO v. FINK et al.
• Court: Texas Court of Appeals

24 S.W. 937

STATE NAT. BANK OF EL PASO v. FINK et al.

Court of Civil Appeals of Texas.

January 10, 1894.

Appeal from district court, El Paso county; T. A. Falvey, Judge.

Action by the State National Bank of El Paso against E. M. Fink and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

Millard Patterson and C. N. Buckler, for appellant. T. L. Nugent and M. W. Stanton, for appellees.

JAMES, C. J.

The conclusions of fact arrived at by the district judge are not objected to, and, as they appear to be sustained by evidence, they are made the basis of the action of this court, and are here given as our conclusions, with an explanation given below in a note appended by this court:

"That E. M. Fink is indebted to the plaintiff, on the note sued on in this case, in the sum of $1,233 40/100, and to secure the same the said Fink, on the 30th day of January, 1888, executed a deed of trust on the personal property mentioned in plaintiff's petition, and that on or about January 1, 1889, Fink sold the mortgaged property to Cooper & Bahney without the consent of the plaintiff or the trustee in said deed of trust, and that upon learning of the sale the bank placed said note in the hands of attorneys for collection or security, which resulted in the taking of the instrument of writing attached to plaintiff's petition as Exhibit B, and by which the said Fink attempted to give a lien on his unearned compensation as assessor of El Paso county, Tex., and at the same time he turned over to the bank, as further security, the notes and deed of trust which he (Fink) had taken from Cooper & Bahney when he sold said property to them. That, at the time Exhibit B was executed and delivered, E. M. Fink was the assessor of taxes for El Paso county, and that at the time there was nothing due him as such assessor. That the notes of Cooper & Bahney were not paid to the bank, and that defendant Fink was properly notified thereof, as provided in Exhibit B; and, when the three first notes of Cooper & Bahney became due, suit was instituted upon them in the county court, judgment obtained, and the deed of trust foreclosed on the property mentioned in plaintiff's petition. That on or about February 1, 1889, Fink took back the property from Cooper & Bahney, upon their failure to pay anything upon the notes which they had executed in consideration of said property. That in August, 1889, the sheriff of El Paso county had in his possession an order of sale issued from the county court in the suit in which the judgment foreclosing the deed of trust was rendered, and that the sheriff was about to seize the said property then in the hands of said Fink for the purpose of sale in satisfaction of said order of sale, and that some time about the last of August or the first of September, 1889, the said Fink applied to the said bank for the purpose of getting it to hold up the said order of sale, and to get it to leave the property in his possession, with the right in the said Fink to sell said property at private sale. That this request was made by Fink in order to enable him to realize as much as he could by selling said property at private sale, and to avoid sacrifice at public sale, under the order of sale. That this request was made, on part of Fink, in the office of the bank, and, at the time the request was made, Exhibit B was read to Fink; and, in order to induce the bank to hold up said order of sale, he represented to said bank that his work as assessor for 1889 was done, and that he was waiting for the commissioners' court to meet, which it would do in a few days, and then the bank would get its money. And that, when Exhibit B was read over to Fink, it was handed back to the cashier of said bank, to be kept by it. That in that conversation in the bank the said Fink recognized the validity of the instrument creating the lien on his compensation as assessor, and stated to the bank that it was already secured by the written lien on his compensation, and that the bank could lose nothing by holding up the order of sale, and by leaving the property in his possession, with power to sell it at private sale. And that these representations were made by Fink for the purpose of inducing the said bank to hold up the order of sale, and to leave the property in his possession, with power to sell it at private sale. That these statements were believed by the bank, and were relied on by it; and by reason of them the order of sale was held up, and the property was left in the possession of said Fink by the bank, with power to sell the same for the best price he could at private sale. That this conversation and agreement to hold up the order of sale took place...