Tinkham v. Wright

• Decision Date: 04 February 1914
• Citation: 163 S.W. 615
• Parties: TINKHAM et al. v. WRIGHT et al.
• Court: Texas Court of Appeals

163 S.W. 615

TINKHAM et al. v. WRIGHT et al.

Court of Civil Appeals of Texas. San Antonio.

February 4, 1914.

Appeal from District Court, Bexar County; R. H. Ward, Judge.

Action by Martin Wright and others against the Exposition Park & Amusement Company, in which John T. Wilson and Caroline Tinkham and husband intervened. From a judgment for plaintiff and intervener Wilson, Caroline Tinkham and husband appeal. Affirmed.

Denman, Franklin & McGown, of San Antonio, for appellants. Ball & Seeligson and Chas. W. Trueheart, both of San Antonio, for appellees.

FLY, C. J.

This suit was instituted by Martin Wright, on a promissory note for $1,217 and an open account for $186.20, against the Exposition Park & Amusement Company, it being alleged that the note was secured by a chattel mortgage and materialman's lien on the property of the defendant. John T. Wilson intervened in the case, seeking to recover an indebtedness against the Park & Amusement Company, alleging that it was secured by deed of trust upon the property in controversy, being what is known as Exposition Park, which was executed by appellants and the company. Caroline Tinkham intervened, alleging that the real estate upon which the Exposition Park was situated, and which was covered by the deed of trust to intervener Wilson, was her separate estate; that it was purchased by her for a homestead, and the liens set up by Wright and the deed of trust alleged by Wilson were invalid as against said homestead; that if the deed of trust was valid, then she alleged that it was given to secure a $5,000 note, and the lien had ceased to be operative because the note had been substituted for a note not signed by the same parties as those who signed the first note, and that the deed of trust was not given to secure the other notes sued on by Wilson, amounting to about $8,000; that the deed of trust was procured by fraud of Wilson, in regard to the contents of the deed of trust, and that the notary public who took her acknowledgment to the deed of trust did not explain it to her; and that she was ignorant of its contents. The cause was submitted on special issues, and upon the answers returned by the jury the court adjudged and decreed that the deed of trust executed by the Exposition Park Company and Mrs. Tinkham and her husband, C. E. Tinkham, to R. L. Ball, trustee, to secure certain indebtedness to Wilson, be foreclosed; that said Wilson recover of C. E. Tinkham and the Park & Amusement Company the sum of $26,075.29, and interest, and that the lien given in the deed of trust be foreclosed, both as to the makers of it and as to Martin Wright, the receiver appointed at his instance, and a number of other persons named therein, on all the property, real and personal, involved in the suit, being certain land and all the personal property and all the appurtenances thereon known as the Exposition Park. A number of leases were canceled, and it was further adjudged that Mrs. Tinkham recover of the receiver appointed by the court the sum of $3,440.33 for rent of the property from the date of his appointment on September 26, 1911, to March 6, 1913, said sum to be classified by the court and to be paid in the manner ordered by the court. This appeal was perfected by the Tinkhams.

The facts sustain the conclusions that the debts set up and described were secured by a deed of trust on the property of Caroline B. Tinkham, described in said instrument, and being known as the Exposition Park, which was given by her and her husband and the park company, that authority was given in the deed of trust for the renewal of the note and the execution of other notes by the company for which that instrument would be security, and that the debts sued on by Wilson were strictly within the purview and meaning of the deed of trust, and were secured thereby. We further conclude that the property was not the homestead of the Tinkhams when the deed of trust was executed.

The court, at the request of one of the parties submitted a number of special issues to the jury, with the admonition that if the first three were answered in the affirmative the others should not be answered. The first three issues were answered in the affirmative and are as follows:

"Question No. 1: Do you find from the evidence that when Mrs. Caroline B. Tinkham signed and acknowledged the deed of trust which is sought to be foreclosed by intervener John T. Wilson in this case, she did so with full knowledge and understanding of the contents of said deed of trust?

"Question No. 2: Do you find from the evidence that the notary public, John E. Coryell, exhibited and fully explained to Caroline B. Tinkham, separate and apart from her husband, the deed of trust sought to be foreclosed in this case?

"Question No. 3: Did the notary public who took Mrs. Caroline B. Tinkham's acknowledgment to the deed of trust sued upon explain to her, at the time of taking her acknowledgment, that said instrument, in addition to securing the $5,000 note, dated April 1, 1911, attempted to secure all debts then due from the Exposition Park & Amusement Company to the West End Lumber Company, or to John T. Wilson, for material furnished to said company, as well as all other debts that might thereafter become due from the Exposition Park & Amusement Company for material furnished by the West End Lumber Company, and all moneys that John T. Wilson might advance to the Exposition Park & Amusement Company?"

It is claimed through the first assignment of error that upon the answers to the three issues judgment should have been rendered for appellants, because, if the trust deed created a lien on the property of Caroline B. Tinkham, it was to secure a $5,000 note described therein, and that the lien had been lost by a renewal of the note by different parties from those who executed the original note, and because the deed of trust was not given to secure any debts to the West End Lumber Company, nor any indebtedness except the $5,000 note. The assignment of error is based on the construction placed on the deed of trust by appellants, which is that no debts were secured except the one evidenced by the note described in the deed of trust or its renewal with the same makers on it, and that no power of extension or renewal was given except as to the $5,000 note.

The deed of trust, after conveying the property to R. L. Ball, trustee, provided: "This said conveyance, transfer and mortgage is intended, however, as a trust for the purpose of better securing J. T. Wilson, of San Antonio, Texas, in the payment of one certain promissory note, of even date herewith, due ninety days after date, for the sum of five thousand dollars, payable to the order of J. T. Wilson at the National Bank of Commerce of San Antonio, Texas, bearing interest from maturity at the rate of ten per cent. per annum, and providing for the payment of ten per cent. additional as attorney's fees if placed in the hands of an attorney for collection, or in the event judicial proceedings are instituted to enforce the collection thereof, and this said deed of trust is also intended to secure the payment of any renewals of said note, or any part thereof, or any substitutes therefor, and also to secure the payment of any and all notes which may be hereafter executed by the said Exposition Park & Amusement Company payable to the order of said J. T. Wilson, together with interest and attorney's fees as may be stipulated in note or notes given to evidence such said indebtedness, and this said deed of trust shall be, remain and constitute a continuous and continuing security for the purpose of better securing the payment of said above described indebtedness, as well as any and all renewals, extensions and continuations thereof. Upon the payment of all indebtedness or liability upon our part, as hereinabove specified, being well and truly made by us, then and in such event, this conveyance is to become null and void, and of no further force and effect, and shall be released at our cost and expense. But in case of the failure or default upon our part to pay said promissory note to the said J. T. Wilson, or the legal owner and holder of said note, together with interest thereon accrued at the maturity thereof, or at the maturity of any extension or extensions thereof, together with all other notes that may be hereafter executed by the said Exposition Park & Amusement Company payable to the order of J. T. Wilson as hereinabove specified, then and in such event the said R. L. Ball, trustee, * * * is by these presents fully authorized and empowered and it is made his special duty at the request of the said J. T. Wilson or the legal owner and holder of said note or notes or any renewals or extensions thereof to sell * * * and to receive thereof which shall be applied as follows: * * * 2nd. To the payment of said note and interest and all...