Urbahn v. Martin
|46 S.W. 291
|URBAHN v. MARTIN et al.<SMALL><SUP>1</SUP></SMALL>
|25 May 1898
|Court of Appeals of Texas
Appeal from district court, Webb county; A. L. McLane, Judge.
Suit by Raymond Martin against A. Urbahn and others. From a decree in favor of plaintiff and defendant Urbahn against defendant Ryan, and establishing a lien on property in favor of Martin, Urbahn appeals. Modified and affirmed.
J. O. Nicholson, for appellant. John A. Valls and Dodd & Mullaly, for appellee.
This suit was brought by the appellee against Thomas Ryan, Dario Sanchez, and Albert Urbahn to recover of Ryan the sum of $7,728.20, paid by Martin for Ryan to Webb county, as surety on Ryan's bonds as county treasurer of said county, and to foreclose a mortgage lien given on the 13th day of November, 1896, in the form of a deed on certain real estate by Ryan to Martin, to indemnify the latter as such surety, and against Sanchez and Martin to cancel a certain deed of revocation and deed of trust made by Ryan to Sanchez, to secure both Martin and Urbahn against liability as co-sureties on Ryan's bonds as county treasurer of Webb county. By his answer, the appellant, Urbahn, claimed that, as co-surety with Martin, he had also paid the sum of $7,728.20 of Ryan's indebtedness to said county, and that the mortgage in the form of a deed made by Ryan to Martin inured to his benefit as well as to Martin's, and that he was entitled to have such lien declared upon the property described in said mortgage, and the mortgage foreclosed in his favor as well as in Martin's, and the proceeds under foreclosure sale appropriated equally to the payment of such judgment as he and Martin might recover against Ryan by reason of their paying, as sureties, Ryan's debt to Webb county. The case was tried by the court, without a jury; and upon the facts found by the trial judge, which are substantially those found by this court, judgment was rendered in favor of Martin and Urbahn each against Ryan for $7,728.20, with interest from date of judgment, and in favor of Martin for foreclosure of the lien claimed by him upon said real property, and against Urbahn on his claim for an equal lien on said property with Martin, it being adjudged that Urbahn had no lien thereon, from which judgment this appeal is prosecuted.
Conclusions of Fact.
On the 13th day of November, 1896, Thomas Ryan was the county treasurer of Webb county, Tex., and Albert Urbahn and Raymond Martin were co-sureties on his official bonds. On and after that date, Ryan, as such treasurer, was indebted to Webb county in the sum of $17,000, for which indebtedness he, together with his said sureties, was liable on his official bonds. Ryan, being unable to pay said indebtedness on said date, executed and delivered to Raymond Martin, one of said sureties, on his bond, an instrument in the form of a deed, whereby he conveyed certain lands in the counties of Webb and Encinal, Tex., which deed recites a consideration of $5,000. At the same time, he executed to Martin another instrument in the form of a deed, by which he conveyed him certain lots in Bexar county, Tex., for the express consideration of $1,000. No consideration was in fact paid by Martin to Ryan for said property, but the instruments were intended as mortgages to secure him as surety on Ryan's official bonds against liability thereon. The testimony is conflicting as to whether or not said instruments were made with the intention of securing both Martin and Urbahn against liability on said official bonds, or with the intention of securing Martin alone. But as the trial judge, in his conclusions of fact, found that they were made with the intention of securing Martin only, and there is evidence to support such finding, we have on this question adopted his conclusions. On the 7th day of December, 1896, Thomas Ryan executed and delivered to Dario Sanchez, as trustee, a certain deed of trust upon the property conveyed by the deed first above referred to, which in substance recites that it was executed for the purpose of securing Raymond Martin and Albert Urbahn as sureties on his two official bonds as treasurer of Webb county; and it provides that in case Albert Urbahn and Raymond Martin, or either of them, are compelled to pay, as sureties on said bonds, any sum of money because of the grantor's default as principal, then Dario Sanchez shall be fully authorized and empowered, at the request of said beneficiaries, at any time after payment by them as sureties, to sell said property to the highest bidder for cash, at public outcry, at the courthouse door, and to receive the proceeds of sale, and apply them to the payment of said sum or sums of money that may be so paid by Albert Urbahn and Raymond Martin, as sureties, and the interest accruing thereon. This deed of trust bears date the 11th day of November, 1896, it having been prepared at the instance of both Martin and Urbahn on that day for the purpose of obtaining from Ryan the security indicated by said instrument. But when it was presented to Ryan, by the parties representing both sureties, for his signature, he refused to sign it until the said sureties would pay the amount he was then due the county; and it was not in fact executed by him until the 2d day of December, 1896, after he had made the deeds aforementioned to Martin, and they had been placed on record. At the time Ryan executed this deed of trust, he also executed an instrument, and had it placed upon record, in which it is recited that the deed to Martin, of November 13, 1896, which conveyed the lands in Webb and Encinal counties, was intended by him to be made to both Martin and Urbahn for the purpose of indemnifying them against any amount that they might pay on his official bonds, and that he thought, when he signed the deed, that it was made to both of them. After these recitations, the instrument concludes as follows: ...
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Broussard v. Mason
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