Thaxton v. Whitesides, 12727.

• Decision Date: 29 October 1932
• Docket Number: No. 12727.,12727.
• Parties: THAXTON et al. v. WHITESIDES.
• Court: Texas Court of Appeals

54 S.W.2d 1059

THAXTON et al. v. WHITESIDES.

No. 12727.

Court of Civil Appeals of Texas. Fort Worth.

October 29, 1932.

Appeal from Clay County Court; T. K. Howard, Judge.

Suit by E. E. Whitesides against L. C. Thaxton and another. From the judgment for plaintiff, defendants appeal.

Reversed and remanded.

Taylor, Muse & Taylor, of Wichita Falls, and Donley Suddath, of Henrietta, for appellants.

Frank Bunting, of Henrietta, for appellee.

LATTIMORE, J.

Appellee, alleging himself the holder in due course of two notes, executed by G. C. and L. C. Thaxton, sued them thereon. Appellants pleaded misjoinder of parties in that the notes were executed by them to the order of Mrs. Bennie Williams, who had indorsed one of the notes to appellee as collateral security for the debt to appellee of her deceased husband, J. C. Williams, administration on whose estate was then pending. Mrs. Williams, who was not sued, had leased a pasture of some two hundred acres from appellee. The pasture was a part of a larger tract all under one fence. She in turn leased the entire larger tract to appellants, receiving those notes in payment therefor, and indorsing them to appellee, one without condition for her lease hire, the other as the above-stated collateral.

Thereafter, the remainder of the tract being claimed by its owners, the appellants and Mrs. Williams relieved each other by agreement of the sublease, and the agent of appellee, being apprised of this, approached Mr. Suddath, agent for Mrs. Williams, and demanded to see the lease his client had made to Mrs. Williams. "What do you want with it?" asked Suddath. "You have turned the land back and I want the contract back," replied Bunting. Thereupon Suddath delivered the lease contract document back to appellant's agent, who thereupon leased the land to Johnson.

The holder of a note pledged as collateral may sue in his own name for the full amount thereof, and, collecting it, pay the pledgor's debt to himself, and hold the balance in trust for his pledgor. Bruyere v. Liberty Nat. Bank of Waco (Tex. Civ. App.) 262 S. W. 844. This authority is given the pledgee by the pledgor by such pledge. Article 5935, § 51, Rev. Statutes. It is no concern of the obligor on the pledged note concerning such excess. However, it is the right to such obligor to interplead such pledgor if desirable that the judgment may be res adjudicata of the pledgor. This duty is not on appellee. It is on appellants.

If there be a defense available to the maker of the note against such pledgor, then the pledgee, if a holder in due course, can only recover of such maker of the note to the extent of the pledge which must be established by appellee. Appellant may require, if the equities permit, that other security be first exhausted, but this last, however, is defensive pleading. It is not incumbent on appellee to negate in his original petition the existence of facts which are not inferable from his petition. These matters are not pleaded by appellants by way of abatement or misjoinder, nor do they make Mrs. Williams a party other than to...