Walker v. Citizens Nat. Bank of Waco

• Decision Date: 20 May 1948
• Docket Number: No. 2795.,2795.
• Citation: 212 S.W.2d 203
• Parties: WALKER et al. v. CITIZENS NAT. BANK OF WACO et al.
• Court: Texas Court of Appeals

Page 203

212 S.W.2d 203

WALKER et al. v. CITIZENS NAT. BANK OF WACO et al.

No. 2795.

Court of Civil Appeals of Texas. Waco.

May 20, 1948.

Rehearing Denied June 10, 1948.

Appeal from District Court, McLennan County; R. B. Stanford, Judge.

Suit by the Citizens National Bank of Waco against Myrtice Walker and others for an indebtedness represented by two notes and to foreclose deed of trust executed by named defendant, wherein the named defendant filed a cross-action. From adverse judgment, the named defendant appeals.

Affirmed.

Woodrow F. Eason and W. L. Eason, both of Waco, for appellants.

Richey, Sheehy & Teeling and Scott, Wilson & Cureton, all of Waco, for appellees.

LESTER, Chief Justice.

The parties to this litigation will be referred to as follows: The Citizens National Bank as "the bank," Myrtice Walker as "the defendant", the other joint maker of the note sued upon, who has since died, as "the deceased", and the representatives of the estate of the deceased as "executors".

The bank sued the defendant and the executors of the estate of the deceased for an indebtedness represented by two notes, one a renewal note of $1,700, dated July 12, 1946, and a $2,000 note, dated August 16, 1946. It was alleged by the bank that the defendant and the deceased were joint makers of said notes and prayed for a joint and several judgment against the defendant and the executors of the estate of the deceased. The bank also alleged that the defendant had executed a deed of trust on certain property described to secure the payment of said notes, and sought foreclosure thereof.

The defendant filed an answer and cross-action, in which she alleged that she was only secondarily liable on said note, in that the deceased had given her the money and agreed with her to pay the notes when they became due.

The executors' contention is that the deceased was an accommodation maker of the notes sued upon and that his estate was only secondarily liable, and pleaded lack of consideration between the defendant and the deceased in respect to the gift and the agreement to pay the notes at maturity.

The defendant further pleaded that she applied to the bank for a G. I. loan in the sum of $8,000 for the purpose of building a home, and agreed to execute a deed of trust to secure said amount. The deed of trust was dated April 26, 1946, and contained the following provision, to wit: "This deed of trust shall secure in addition to the above indebtedness any and all other indebtedness of the undersigned to The Citizens National Bank of Waco now owing or which may hereafter become owing, whether evidenced by note, open account, overdraft, endorsement, surety, guarantor or otherwise." Concerning said clause she pleaded that it was placed in said instrument through the mutual mistake of the parties or through fraud on the part of the representative of the bank; that when she signed the deed of trust she did not know that it contained such a provision; that she was unable to read at the time as she had recently broken her glasses and was thereby prevented from reading the same; that it was contrary to the terms of the oral agreement between her and the bank in that it was the understanding of each that the deed of trust was to secure the $8,000 note and no more, and if she had known of said provision at the time she signed it she would not have so signed.

The court submitted the case to the jury upon the following issues:

(1) "Do you find from a preponderance of the evidence, if any, that Myrtice Walker Holmes did not know at the time she executed the G. I. deed of trust that it contained the following clause: `This deed of trust shall secure in addition to the above indebtedness any and all other indebtedness of the undersigned to The Citizens National Bank of Waco now owing or which may hereafter become owing whether evidenced by note, open account, overdraft, endorsement, surety, guarantor or otherwise.'?"

To which the jury answered: "She did know."

(2) "Do you find from a preponderance of the evidence, if any, that Myrtice Walker Holmes believed, when she signed the G. I. deed of trust that it secured only the $8000.00 G. I. note?"

To which the jury answered: "No."

(3) "Do you find from a preponderance of the evidence, if any, that the defendant Myrtice Walker Holmes would not have signed the deed of trust had she known it contained the clause securing other indebtedness, if she did not know same?"

To which the jury answered: "She would have signed."

(4) "Do you find from a preponderance of the evidence, if any, that before the execution of the G. I. deed of trust the representatives of the bank did not advise Myrtice Walker Holmes that the deed of trust contained the clause relative to `any and all other indebtedness'?"

To which the jury answered: "They did."

(5) "To you find from a preponderance of the evidence, if any, that the defendant Myrtice Walker Holmes would not have signed the $1700.00 renewal note had she known the deed of trust contained the provisions securing other indebtedness, if she did not know same?"

To which the jury answered: "She would have signed."

(6) "Do you find from a preponderance of the evidence, if any, that the defendant Myrtice Walker Holmes would not have signed the $2000.00 note had she known the deed of trust contained the provisions securing other indebtedness, if she did not know same?"

To which the jury answered: "She would have signed."

(7) "Do you find from a preponderance of the evidence, if any, that the defendant Myrtice Walker Holmes was at fault in not reading the deed of trust which she signed, if she did not read same?"

To which the jury answered: "She was at fault."

After the verdict was received the defendant filed her motion asking the court to render judgment for her non obstante veredicto refusing to foreclose the deed of trust lien, alleging that the answer to each issue failed to have support in the evidence. The court overruled her motion and entered judgment for the bank for its debt, with foreclosure on the property, and provided that the judgment should first be satisfied from the proceeds of the foreclosure sale, secondly, upon execution against defendant, and lastly, against the estate of the deceased. The defendant filed her motion for a new trial, which was by the court overruled; hence this appeal.

The defendant's first contention is that the trial court erred in rendering judgment against her foreclosing the G. I. deed of trust lien on her homestead. Under this proposition she lists sixteen assignments of error, based upon the proposition that the answers of the jury and the judgment rendered by the court do not have support in the evidence.

The rule that prevails in Texas is that after disregarding all adverse evidence and considering only the evidence most favorable in support of the verdict and judgment, giving it all reasonable conclusions and inferences that might be drawn therefrom, if such evidence is of sufficient probative force that reasonable minds might differ as to the ultimate conclusion to be reached, it will be held that the evidence supports the verdict and judgment. Associated Employers Lloyds v. Self, Tex.Civ.App., 192 S.W.2d 902; Texas Employers Ins. Ass'n v. Moser, Tex.Civ. App., 152 S.W.2d 390; Associated Employers Lloyds v. Groce, Tex.Civ.App., 194 S. W.2d 103; Great American Indemnity Co. v. Beaupre, Tex.Civ.App., 191 S.W.2d 883.

Some of the evidence most favorable to such findings is that the form of deed of trust used in the instant case was one of the regular forms used by the bank in making loans of this kind; that the bank had used this form in making approximately 200 G. I. loans; that the one who made the loan had been instructed to use this form; that he prepared the instrument knowing that it contained the clause providing that it secured all past or future indebtedness; that after the papers were prepared he gave them to the defendant to read; that she took them and looked at them; that he did not do anything to prevent her from reading the deed of trust that several months after she executed the deed of trust she applied to the bank for the $2,000 loan, wanting it added to her G. I. loan of $8,000, but the report of her $8,000 loan had been sent in to the Vet erans Administration and the bank did not believe it could add the $2,000 to her G. I. loan at that time; that she and the deceased then executed the note for said $2,000. It was without dispute that she signed the deed of trust and acknowledged the same before a notary public, and at that time she owed the $1,700 which is represented by the $1,700 note involved in this case. She received all of the money borrowed and appropriated it to her own use and benefit. The defendant testified on direct examination that she had recently broken her glasses and could not see to read at that time, but she testified that no one in the bank kept her from reading it; that she didn't ask any one to read or explain it to her and that she could have read it if she had wanted to. She testified on direct examination that she didn't read the instrument because she didn't have her glasses, but on re-direct examination she testified that she didn't read it because she was relying upon the representative of the bank as he was supposed to be the G. I. representative. There is evidence that the defendant was a woman with a great deal of business experience; that she had operated a cigar stand and had operated her own beauty parlor since 1932, with the exception of a little less than two years while she was in the service as a WAC. She had executed many notes and a few mortgages prior to the time she signed the deed of trust.

The defendant relies upon the following authorities: Rule 28, article 3713, 11 Vernon's Ann.Civ.Tex.Stats. p. 114; Cooper Grocery v. Strange, Tex.Civ.App., 4 S.W.2d 232, 237; Id., Tex.Com.App., 18 S.W.2d 609, 612; Kelley v. Ward, 94 Tex. 289, 60 S.W. 311, 313; ...