Thurman v. First State Bank

• Decision Date: 28 October 1927
• Docket Number: (No. 357.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 300 S.W. 123
• Parties: THURMAN v. FIRST STATE BANK OF CARBON.
• Court: Texas Court of Appeals

300 S.W. 123

THURMAN v. FIRST STATE BANK OF CARBON.

(No. 357.)^*

Court of Civil Appeals of Texas. Eastland.

October 28, 1927.

Rehearing Denied December 2, 1927.

Appeal from District Court, Eastland County; Elzo Been, Judge.

Suit by the First State Bank of Carbon against J. H. Thurman and another, in which Mrs. Kate Thurman intervened. Judgment for plaintiff, and intervener appeals. Reversed and remanded as to intervener.

Chastain & Judkins, of Eastland, for appellant.

Barker & Orn, of Cisco, for appellee.

HICKMAN, J.

Suit was by the appellee bank against J. H. Thurman, as maker, and Mrs. S. E. Thurman, his mother, as indorser and guarantor, of a negotiable note. The note recited in its face that it was given in part payment for certain lots situated in the town of Carbon, Eastland county. The deed of even date with the note, executed by Mrs. S. E. Thurman, a widow, to her son J. H. Thurman, described the note sued upon and expressly retained a vendor's lien against the property conveyed to secure the payment thereof. J. H. Thurman transferred the note to the Bank of Carbon for a small amount of cash and the payment of his pre-existing indebtedness to the bank. Later the appellee, First State Bank of Carbon, took over the assets of the Bank of Carbon, including the note in suit. Judgment was rendered against the defendants in the suit jointly and severally for the amount of the note, including attorney's fees and against defendants and intervener foreclosing the lien on the property described in the deed. No appeal or writ of error was prosecuted by the defendants. The case is brought to this court by Mrs. Kate Thurman, wife of J. H. Thurman, who intervened in the lower court.

The substance of her petition in intervention is that the purported vendor's lien was an attempt to fix a fictitious lien upon her homestead, and was therefore null and void.

In support of her plea of intervention she offered evidence of the following facts and circumstances surrounding the execution of the note:

On August 20, 1919, her husband, J. H. Thurman, bought the property in question from F. A. Jones, paying the full consideration therefor, which is shown to have been $1,100, in cash. At the time and prior to such purchase she and her husband were occupying the property as tenants of Jones. When Thurman purchased the property, he had the deed executed in favor of his mother, Mrs. S. E. Thurman, without the knowledge of the intervener. Intervener did not learn this fact until more than one year thereafter, and Mrs. S. E. Thurman did not know that the deed was executed to her, paid nothing for the property, and claimed no interest therein. Thereafter, and without the knowledge of intervener, Mrs. S. E. Thurman conveyed the property to J. H. Thurman, for a recited consideration of $3,000, all cash except the $1,375 note sued on in this case. J. H. Thurman, being indebted to the bank, sold said note to the bank, and caused same to be transferred thereto by Mrs. S. E. Thurman. The deed from Mrs. S. E. Thurman to J. H. Thurman and the note in suit were executed on December 7, 1920, more than one year after the purchase of the property by Thurman from Jones. The intervener and J. H. Thurman occupied the property continuously as a homestead of themselves and family from the date of the purchase from Jones to the date of the trial of this case. Intervener had no knowledge whatever of the existence of the note until after it had come into the possession of the appellee bank, and did not know that the title to the property was ever in Mrs. S. E. Thurman or that Mrs. S. E. Thurman ever conveyed same to J. H. Thurman. The officers of the bank had actual knowledge of the occupancy of the premises by Thurman and wife during all the term of such occupancy. The material defense pleaded by the bank, which we shall have occasion to notice, was that it was a holder in due course with no notice of any of the matters relied on by intervener to defeat the lien.

The first question necessary for our decision is the objection raised by appellee to a consideration of the statement of facts filed in the case; the objection being that same was not certified to in the manner prescribed by statute. The statement of facts is certified to by the official court reporter. After this certificate follows an agreement to the effect that it is a true and correct statement of all the facts admitted in evidence. This agreement is signed by the attorneys for appellant, but is not signed by the attorneys of appellee. Follows then the following certicate:

"The foregoing examined, found correct, approved, and ordered filed as the statement of facts in this cause, this the 31st day of January, A. D. 1927. [Signed] Elzo Been, Judge Eighty-Eighth District Court, Eastland County, Texas."

An examination of the authorities has led us to the conclusion that the objection cannot be sustained. When a trial judge executes a certificate in the language of the one above quoted, the presumption exists that the parties were unable to agree upon the statement of facts. McManus v. Wallis, 52 Tex. 534; Schneider & Davis v. Stephens, 60 Tex. 419; Bath v. H. & T. C. Ry. Co., 34 Tex. Civ. App. 234, 78 S. W. 994; Houston Oil Co. of Texas v. Myers (Tex. Civ. App.) 150 S. W. 762; Bigham v. Stamps (Tex. Civ. App.) 212 S. W. 775; McGlasson v. Fiorella (Tex. Civ. App.) 228 S. W. 254.

These decisions were rendered prior to the amendments by the Fortieth Legislature, p. 67, c. 44, § 1, and it is insisted that by such amendments to articles 2239 and 2240 of the Revised Statutes 1925 no presumption can be indulged that the parties failed to agree, in the absence of a showing that the statement of facts was presented to the appellee or his attorney and was not returned to the appellant within 20 days. We cannot sustain this contention. To our minds the amendments strengthen, rather than destroy, the presumption. As amended, the statutes make it the duty of the judge to make out, sign, and file a proper statement of facts, upon proof in any manner satisfactory to him that the statement of facts had been delivered to the appellee or his attorney for 20 days or more. We must presume that proof was made to the trial judge which satisfied him of this fact. The statutes do not require that the certificate of the judge shall state that such proof was made to him; and, in the absence of such requirement, we must presume that the trial judge acted in the premises only after proof satisfactory to him of a failure to agree. The objection to the sufficiency of the certificate to the statement of facts will therefore be overruled.

Many objections are urged by the appellee to the brief of appellant and to a consideration of most of the assignments contained therein. Many of these objections are well founded, and, if controlling in the case, would be sustained by the court; but, for reasons hereinafter stated, we have concluded that the substantive law of the case must be considered and determined by the court, regardless of our inability to consider many of the assignments, and a discussion of the various assignments and objections made by the appellee to a consideration thereof would serve no useful purpose.

The case was submitted to the jury upon special issues, by their answers, to which they determined the following facts:

First. J. H. Thurman paid the purchase price for the house and lots in controversy to F. A. Jones.

Second. The appellee bank had no actual knowledge that Thurman had purchased and paid for the property and taken the deed thereto in his mother's name, prior to and at the time it acquired the note in controversy.

Third. The property in controversy was the homestead of intervener, Mrs. Kate Thurman, from the date of the deed from F. A. Jones to Mrs. S. E. Thurman.

Fourth. The appellee bank had no actual knowledge that the property was the homestead of intervener prior to or at the time it acquired the note sued upon.

Fifth. That the note in controversy is a vendor's lien purchase-money note.

Sixth. On the date of the purchase of the note in suit from J. H. Thurman by the appellee bank, said bank did not have actual knowledge that the property which was covered by said note and against which said note purported to be a lien was the homestead of intervener, Mrs. Kate Thurman.

Seventh. On the date of the indorsement of the note by Mrs. S. E. Thurman and the delivery of same by J. H. Thurman to the appellee bank, said bank did not have such knowledge of the facts that its act in taking such instrument amounted to bad faith.

Appellant's assignment of error No. 7, as to the sufficiency of which no question is made by appellee, complains of the action of the trial court in refusing to give in charge to the jury appellant's special requested issue No. 1, which was as follows:

"On the question of notice by the bank of infirmities in the note, you are charged that possession of lands is evidence of ownership, of equal dignity with a recorded deed. Bearing in mind the above instruction, you will answer this issue: Was Mrs. Kate Thurman in possession of the lands in question from December, 1920, until the date of the deed from Mrs. S. E. Thurman to J. H. Thurman? Answer `Yes' or `No.'"

Appellee contends that the court did not err in refusing to give this special instruction because the issue was not disputed; that the uncontradicted evidence shows that appellant was in possession of said land during all of said time. That being conceded, this case must be considered as if the jury had answered this issue in the affirmative.

By article 16, § 50, of the Constitution of Texas, the homestead of a family is protected from forced sale for the payment of all debts except for the purchase money thereof, the taxes due thereon, or for work and material used in constructing improvements thereon. This section, among other things, expressly provides that:

"No mortgage, trust deed, or other...