Wessendorff v. Aylor

• Decision Date: 01 March 1928
• Docket Number: (No. 9105.)
• Citation: 5 S.W.2d 793
• Parties: WESSENDORFF et al. v. AYLOR et al.
• Court: Texas Court of Appeals

5 S.W.2d 793

WESSENDORFF et al. v. AYLOR et al.

(No. 9105.)

Court of Civil Appeals of Texas. Galveston.

March 1, 1928.

Rehearing Denied April 2, 1928.

Appeal from District Court, Fort Bend County; M. S. Munson, Judge.

Action by A. W. Aylor and others against T. B. Wessendorff, administrator, and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

Peareson & Peareson, of Richmond, for appellants.

C. H. Chernosky and Ward & Ward, all of Houston, for appellees.

GRAVES, J.

The sole question this appeal involves is whether or not this affidavit, from which only the description of the land referred to is omitted, is in compliance with R. S. (1911) art. 3439:

"The State of Missouri, County of Jasper.

"Before me, the undersigned authority, on this day personally appeared E. T. Webb, president of the Merchants' & Miners' Bank of Webb City, Mo., a corporation, duly organized and existing under the laws of the state of Missouri, with its office in the town of Webb City in the county of Jasper, state of Missouri, the said E. T. Webb, president of Merchants' & Miners' Bank, after being by me duly sworn alleges that the attached claim hereto in favor of the said Merchants' & Miners' Bank of Webb City, Mo., against T. A. Wessendorff, is just, and that all legal offsets, known to affiant, have been allowed; and that the said Merchants' & Miners' Bank of Webb City, Mo., is the owner of the said claim which is evidenced by a note executed by T. A. Wessendorff and L. K. Autry and payable to A. W. Aylor for $15,000 due on or before five years after date, bearing 7 per cent. interest, payable semiannually, dated May 1, 1919, at Richmond, Tex., and providing that all past-due principal and interest shall bear interest from maturity until paid at the rate of 7 per cent. per annum, and further stipulating that, if said note is not paid at maturity, and is placed in the hands of an attorney for collection, or if suit is brought on same, or if collected through the probate court or the bankruptcy court, that makers agree to pay 10 per cent. additional on the principal and interest then due thereon as attorneys' fees, and further providing that the failure to pay any installment of interest at maturity will, at the option of the holder, mature the said note, that the interest on said note was paid up to and on the 1st day of November, 1922, and that no other interest installment was paid since then; that said T. A. Wessendorff assumed the payment of said note; that Merchants' & Miners' Bank of Webb City, Mo., bought said note in due and ordinary course of trade for a valuable consideration and before maturity; that said Merchants' & Miners' Bank of Webb City, Mo., are the legal holders and owners of said note, and have thereafter declared said note due because of the failure of makers, or either of them, to pay the installments of interest due on May 1 and November 1, 1923, and have placed the said note in the hands of C. H. Chernosky, an attorney, for collection, and agreed to pay him the 10 per cent. attorney's fees therein stipulated.

"The above-described note is secured by a deed of trust executed by T. A. Wessendorff and wife, Hattie E. Wessendorff, and L. K. Autry and wife, Irma E. Autry, to R. E. L. Wessendorff, as trustee, for the use and benefit of A. W. Aylor on the following described real estate, lying and being situated in the county of Fort Bend in the state of Texas, to wit. * * *

This deed of trust was executed for the purpose of securing payment of the above-described note, together with all interest and attorneys' fees therein mentioned, bearing date May 1, 1919, duly recorded in volume 1, pages 120-123, in the Deed of Trust Records of Fort Bend county, Tex., to which deed of trust and the record thereof reference is hereby made for description of said land and premises and for all other purposes, and a copy of which deed of trust and note is made a part hereof, marked Exhibits A and B, respectively, hereto attached.

"The said note and deed of trust lien is valid and subsisting, and in full force and effect, and the same was assigned to the said Merchants' & Miners' Bank, on October 20, 1923, by written transfer, a copy thereof marked Exhibit C annexed hereto, and the Merchants' & Miners' Bank of Webb City, Mo., pray that said claim in the sum of $15,000 interest and attorneys' fees, together with the deed of trust lien on the above-described property to secure the payment of same, be allowed. That said E. T. Webb is cognizant of facts above stated. [Signed] E. T. Webb, President of Merchants' & Miners' Bank of Webb City, Mo.

"Attest: W. H. Carl, Secretary.

"Sworn to and subscribed by E. T. Webb, president of the Merchants' & Miners' Bank of Webb City, Mo., under my official hand and seal of office, this the 6th day of November, A. D. 1923. [Signed] Austin G. Young, Notary Public in and for Jasper County, Mo. [Seal.]

"My term expires July 20, 1925."

The trial court held it sufficient; appellants contend it is not, in that it contains, of the terms "all legal offsets, payments, and credits" prescribed by the statute, only the words "all legal offsets," and lacks both the words "payments" and "credits," as well as the equivalent of either or both. The appellees, on the other hand, insist that the holding below was correct, in that the word "offsets" in the proof of such a claim includes the words "payments and credits," and that it, at least when taken along with the other portions of the affidavit describing the claim as a note, etc., constituted sufficient proof under the statute.

While the matter is not free from doubt, this court concludes to affirm the judgment and uphold the sufficiency of the affidavit upon the consideration so last advanced by the appellees, which is more fully stated in their brief in this way:

"Where the claim is a written instrument, a promissory note, evidencing the amount of the debt, according to the face of which the principal was not yet due, except as declared due for nonpayment of certain semiannual interest installments as specified in the affidavit and with payments and credits indorsed on the note showing certain payments of interest to have been made, and the affidavit states that no other interest payments were made, and states that the claim is just and that all offsets have been allowed, and that such note is valid and subsisting and in full force and effect, the claim is sufficiently proved."

Both sides agree, as indeed the authorities they each cite affirm, that a literal conformity to the terms of the statute is not necessary, but that a substantial compliance with it is sufficient. Agreeably to...