Taylor v. Hudgins

• Decision Date: 01 January 1874
• Citation: 42 Tex. 244
• Parties: I. M. TAYLOR v. I. L. HUDGINS.
• Court: Texas Supreme Court

42 Tex. 244

I. M. TAYLOR

v.I. L. HUDGINS.

Supreme Court of Texas.

1874.

APPEAL from Tyler. Tried below before the Hon. H. C. Pedigo.

Q. M. Crasson, for appellant.

W. B. Cline, for appellee.

DEVINE, J.

On the 24th of October, 1854, appellant executed, delivered, and acknowledged for record his power of attorney to I. H. Finch, of the county of Orange, in which he authorized Finch, as his true and lawful attorney, to act for him, and in his “name, place and stead, to mortgage, hypothecate, or create a lien upon all or any portion of my (his) lands, being situate in this State aforesaid, with the appurtenances, and all my (his) estate, right, title, and interest thereunto such person or persons, and for such price or prices as he shall think proper,” * * * and to “sign and deliver and acknowledge all such mortgages, liens, or deeds of hypothecation as shall be necessary for the absolute granting of the powers unto all such persons interested.”

By virtue of this power, I. H. Finch obtained, in the parish of “St. Mary's,” in the State of Lonisiana, from appellee, the sum of two thousand five hundred and seventy-five dollars ($2,575), and, as attorney of appellant, executed a note and deed of trust on the land in Tyler county, described in the pleadings and exhibits. The note and trust deed were executed on the 12th of May, 1855, and the latter recorded July 11th, 1855. The trustee (Curtiss) failing to execute the trust after the maturity of the note, Hudgins brought suit to foreclose the mortgage. The defendant excepted, answered with a general denial, and filed a plea of non est factum, in the following words: “Defendant says that he never made, executed, and delivered the said pretended promissory note mentioned and described in plaintiff's petition, to any person whatever; nor signed his name to the same, nor authorized any other person whatever to make and execute said pretended promissory note, nor sign his name to the same, wherefore he pleads non est factum,” etc.

A jury was waived, the cause was submitted to the court, and a judgment rendered in favor of plaintiff for the sum of five thousand nine hundred and sixty-five dollars ($5,965)--the amount of principal and interest due, and the usual decree of foreclosure and sale.

Appellant assigns as error the overruling by the court, his exceptions to plaintiff's original and amended petitions, and in overruling his objections to the introduction in evidence of the note sued on, and the power of attorney to Finch, and deed of trust executed by the latter (in favor of Hudgins) as the attorney, in fact, of appellant, as set forth in bills of exceptions. The other assignments of error are embraced in those stated.

There was no error in overruling defendant's exceptions to plaintiff's petition and amendment; they both set forth a sufficient cause of action. That the court erred as set forth in bill of exceptions No. 1, in permitting the note to be read in evidence notwithstanding defendant's plea of non est factum, we are not inclined to admit; the plea studiously avoided any denial of defendant's having executed and delivered his...