Wandelohr v. Grayson County Nat. Bank
| Decision Date | 30 November 1907 |
| Parties | WANDELOHR et al. v. GRAYSON COUNTY NAT. BANK et al.<SMALL><SUP>*</SUP></SMALL> |
| Court | Texas Court of Appeals |
Suit by Adelaide Wandelohr and C. B. Wandelohr against the Grayson County National Bank and others. From the judgment, plaintiffs, and Paul Waples and Jot Gunter, sureties on a replevy bond, bring error. Dismissed as to plaintiffs in error Wandelohr. Affirmed as to the sureties.
See 102 S. W. 746.
Galloway & Vervell and Don. A. Bliss, for plaintiffs in error. A. L. Beaty, for defendant in error.
Adelaide Wandelohr, joined by her husband, C. B. Wandelohr, instituted this suit against the Grayson County National Bank, the Sherman Grain Company, W. P. Head, trustee, and J. P. Everheart to cancel and remove cloud from title to a certain lot of land in Sherman, Grayson county, Tex. The instruments sought to be canceled were a deed executed by Adelaide Wandelohr and husband on the 30th day of September, 1899, wherein they conveyed said lot to the Sherman Grain Company; a deed of trust executed by C. B. Wandelohr, as president of said Grain Company, conveying said premises to J. W. Blake as trustee, to secure the payment of five bonds for $1,000 each, with interest at 8 per cent. and 10 per cent. attorney's fees, if collected by suit, executed by the said C. B. Wandelohr as president of said grain company; a certain deed executed March 3, 1903, by C. B. Wandelohr as president of said grain company conveying said premises to J. P. Everheart; a quitclaim deed executed by Adelaide Wandelohr and husband on March 3, 1903, conveying all their right, title, etc., in said premises to said J. P. Everheart; a deed dated March 3, 1903, by J. P. Everheart, conveying to C. B. Wandelohr said premises, in consideration of $8,667.70, evidenced by five notes of same date; a certain deed of trust executed March 3, 1903, by C. B. Wandelohr, conveying the said premises to W. P. Head, as trustee, to secure the notes payable to said Everheart, and a certain deed executed by said Head, trustee, on April 5, 1904, conveying said premises to the Grayson County National Bank. It was alleged that at and during the time said transactions took place said premises belonged to Adelaide Wandelohr in her own separate rights, and were occupied and used by C. B. Wandelohr, her husband, as a place for the exercise of his avocation, that of grain and produce dealer, and that the same was the business homestead of her said husband and herself; that the incorporation of the Sherman Grain Company was a mere device adopted at the suggestion of J. W. Blake, cashier of said bank, for the purpose of enabling the said premises to be used as a security for a loan made by said bank to said C. B. Wandelohr; that what was known as the Everheart transaction, consisting of the execution and delivery by her and her said husband of a quitclaim deed to said premises unto J. P. Everheart, the execution and delivery of a deed by C. B. Wandelohr in the name of the said Sherman Grain Company, purporting to convey said premises to the said Everheart, and a deed executed by the said Everheart purporting to convey said premises to C. B. Wandelohr, and a deed of trust executed by the said Wandelohr purporting to convey said premises to W. P. Head as trustee, to secure the payment of the notes described in the deed from Everheart to Wandelohr, was merely a continuation of said mortgage executed to secure said bank and constituted one transaction. The said bank, besides pleading a general denial, reconvened in the suit, and sought to recover the title and possession of the said premises of the said Adelaide Wandelohr and her said husband; and sued out a writ of sequestration, which was duly levied by the sheriff of Grayson county on the said premises, whereupon the said Adelaide Wandelohr, joined by her said husband, replevied the premises, executing a replevy bond therefor, with Paul Waples and Jot Gunter as sureties. The said bank also sought to recover of the said Adelaide Wandelohr on a certain guaranty in writing executed by her, wherein she purported to bind herself and her separate property for the payment of one of the notes executed and delivered by C. B. Wandelohr to J. P. Everheart, being a note for the sum of $1,000, which, according to its face, became due on the 1st day of January, 1904. Said bank further sought to recover of C. B. Wandelohr the balance it claimed that the said Wandelohr owed it after deducting the price that had been bid by said bank for the property at the sale thereof by W. P. Head, trustee. As an alternative plea, in case the court should hold that the sale made by said trustee and the deed made by said trustee to said bank in pursuance of said sale were for any reason invalid, the said bank set up the execution and delivery by the said C. B. Wandelohr of the notes to Everheart, the execution and delivery by the said Wandelohr of the said trust deed purporting to convey said property to W. P. Head as trustee, for the purpose of securing said notes, that the said notes had been truly transferred and assigned to it by the said Everheart, and that the said notes, by the terms thereof, were due; and the said bank sought to recover of the said C. B. Wandelohr the amount of said notes and prayed for a foreclosure of its mortgage lien on said premises as against both the said C. B. Wandelohr and Adelaide Wandelohr. A trial before a jury on the 23d day of January, 1905, resulted in a verdict and judgment in favor of all the defendants that each and all of said defendants go "hence without day" and recover of said plaintiff and her said husband their costs, and in favor of said bank, that it recover of said plaintiff and her said husband the title and possession of said premises and of the said C. B. Wandelohr and Paul Waples and Jot Gunter, sureties on the said replevy bond, the sum of $1,800, the rents of said premises; and of said C. B. Wandelohr alone the sum of $2,836.17 additional, but that said bank take nothing against said plaintiff Adelaide Wandelohr. Adelaide Wandelohr, joined by her husband, C. B. Wandelohr, and Paul Waples and Jot Gunter, sureties on said replevy bond, prosecute this writ of error.
As to Adelaide Wandelohr, the judgment herein complained of was appealed from by her, and on the 7th day of October,...
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