Wisong v. Auken, 1979.

• Decision Date: 23 June 1930
• Docket Number: No. 1979.,1979.
• Citation: 29 S.W.2d 930
• Parties: WISONG v. VAN AUKEN.
• Court: Texas Court of Appeals

29 S.W.2d 930

WISONG v. VAN AUKEN.

No. 1979.

Court of Civil Appeals of Texas. Beaumont.

June 23, 1930.

Rehearing Denied July 7, 1930.

Error from District Court, Jefferson County; Geo. C. O'Brien, Judge.

Action by M. A. Van Auken against Joseph A. Wisong. Judgment for plaintiff, and defendant brings error.

Affirmed.

Kitching & Kenna, of Beaumont, and Jos. A. Wisong, of Liberty, for plaintiff in error.

D. E. O'Fiel, of Beaumont, for defendant in error.

O'QUINN, J.

M. A. Van Auken was plaintiff in the court below. She sued plaintiff in error to recover the balance due on a promissory note executed by plaintiff in error on June 1, 1925, for the sum of $1,103, payable to her order, said note bearing interest at the rate of 8 per cent. per annum, and providing for 10 per cent. attorneys' fees if collected by suit. There was a credit of $200 on the note. The note recited that it was given for money borrowed from defendant in error, and that to secure the payment of said note, plaintiff in error had executed a certain deed of trust on certain described lands situated in Orange county, Tex. Her prayer was for judgment for her debt, interest, attorneys' fees and costs of suit, and relief generally.

Defendant in error, Wisong, defendant below, answered by general demurrer, admitted the execution of the note, but denied any liability thereon, alleging that same had been fully paid long prior to the filing of the suit. He also admitted the execution of a deed of trust on certain lands in Orange county, Tex., to secure the payment of said note, and alleged that at the same time he gave deeds of trust on the same property to the law firm of Howth, Adams & Hart, to John T. Kitching and David E. O'Fiel to secure the payment of money he owed them. He further alleged that plaintiff, M. A. Van Auken, foreclosed her deed of trust on said property when her note became due and purchased said property at the trustee's sale; that thereafter the said M. A. Van Auken, and said Howth, Adams & Hart, John T. Kitching, and David E. O'Fiel demanded of plaintiff in error, Wisong, that an absolute assignment of all his interest in and to said property be made by him to said parties, and that he did make and deliver to said parties an assignment of all his interest in same, which was accepted by all of said parties in full payment and satisfaction of the amount due to each of them, respectively, by reason of which said note here in question had been fully paid and discharged. His prayer was that said note be canceled, and in the alternative that the property upon which he had given the deeds of trust was of value in excess of the debt and asked for judgment against defendant in error in the sum of $2,000, in the event said note was not canceled.

To the defensive matters set forth in Wisong's answer, defendant in error answered by general demurrer, general denial, and specially that, at the time of the said assignment pleaded by plaintiff in error, he had no interest in or to said property for in that all the interest or claim he had in or to said property had been fully divested out of him by conveyances executed by him to others, and particularly by the sale under the deed of trust executed to defendant in error when and where the said property was sold to, and bought in by, defendant in error, by reason of which he had no interest in said property to assign to any one; that said assignment was without consideration and of no force; that by said assignment no right passed from plaintiff in error to defendant in error, nor any from defendant in error to plaintiff in error; that when defendant in error foreclosed her deed of trust on said property same was done strictly in compliance with the terms of said deed of trust, and accordingly all the interest in said property then owned or held by plaintiff in error was sold at said deed of trust sale and for a fair price, leaving a balance due defendant in error on said note of the amount sued for. In answer to plaintiff in error's said pleading, she attached an exhibit to her pleading showing she had received as revenues from said property the sum of $108.45. Later defendant in error filed an amended pleading wherein she alleged as before, and prayed as before, and asked in the alternative, for judgment for her debt and foreclosure of her lien.

In answer to this amended petition plaintiff in error filed his amended answer setting up all the matters as in his original answer, and further alleged that after defendant in error had foreclosed her deed of trust on said property a dispute arose between defendant in error, M. A. Van Auken, and said Howth, Adams & Hart, John T. Kitching and David E. O'Fiel, to whom plaintiff in error had executed deeds of trust on said property, as to their respective rights and the interest each of said parties had in and to said property, and that all of said parties agreed as a settlement of said dispute that plaintiff in error would execute an absolute assignment of all his interest in and to said property to the said parties in the proportion of one-half to Howth, Adams & Hart, one-third to defendant in error, M. A. Van Auken, and one-sixth to David E. O'Fiel, said assignment would be accepted by said parties as a novation of all their prior agreements and waive all their interests and rights theretofore acquired by them under the deeds of trust, and promised to give to plaintiff in error, if he executed said assignment, and at the time of his executing same, a letter to the effect that said assignment, though absolute on its face, was intended as a mortgage to secure the payment of the amount of money due by plaintiff in error to each of said parties, but that defendant in error, M. A. Van Auken, refused to give such letter and demanded payment in full of all her demands by a certain date, which plaintiff in error was not able to make, whereupon defendant in error appropriated said property to her own use and benefit and collected rents and revenues from same and refused to account to plaintiff in error for same, thereby releasing him from any indebtedness he might have owed her.

Defendant in error replied to this amended pleading on the part of plaintiff in error by general demurrer, general denial, and special pleas not necessary to mention.

The case was tried to the court without a jury and judgment was rendered for defendant in error in the sum of $1,213.30, less a credit of $200, with interest thereon at the rate of 8 per cent. per annum until paid, and refused plaintiff in error judgment on his cross-action. The case is before us on plaintiff in error's appeal by writ of error.

At the request of plaintiff in error, the court made and filed his findings of fact and conclusions of law. They are:

"Conclusions of Fact and Law.

"1. I find that on June 3rd, 1925, J. A. Wisong executed to M. A. Van Auken, a feme sole, his promissory note due in one year from said date, in the sum of Eleven Hundred and three ($1,103.00) Dollars, payable at Beaumont, Texas, and that coincident with its execution he also executed and delivered a deed of trust in favor of M. A. Van Auken, covering interest in certain lands described in the pleadings, situated in Orange County, Texas, to secure its payment, with C. H. Stroeck as trustee; that said note matured June 3rd, 1926, and the said J. A. Wisong failed to pay same, that M. A. Van Auken, the owner of said note, demanded an enforcement of the terms of the said deed of trust; that C. H. Stroeck, the original trustee, resigned, and A. S. Reagan was duly appointed substitute trustee, and made sale of said interest in said lands under foreclosure, at which time same was sold for a price of Two Hundred ($200.00) Dollars, which was duly credited on said note.

"I find that the amount due on said note is the principal, Eleven Hundred and Three ($1103.00) Dollars, ten (10%) percent additional on the principal and interest as attorney's fees, and eight (8%) percent on same from June 3rd, 1925, subject to a credit of Two Hundred ($200.00) Dollars made July 6th, 1926; that M. A. Van Auken is the owner of said note and entitled to demand and receive collection of the amounts due.

"I find that the transaction referred to in defendant's pleadings, was not intended as a mortgage or conditional sale of the property described and referred to in defendant's pleadings.

"I find that at one or two times, as shown by the evidence, at defendant J. A. Wisong's request, the plaintiff agreed that he might repurchase the lands by paying as a consideration therefor the full amount of the principal and interest due on the same;

"I find that no consideration however passed from the defendant, J. A. Wisong, to the plaintiff, M. A. Van Auken, for the making of said promise, and find that the said J. A. Wisong failed to carry out his agreement, and find that he failed to tender the said purchase price and demanded any deed of the said plaintiff.

"Conclusions of Law.

"From the above and foregoing I conclude that the plaintiff is entitled to recover the balance due on the note sued upon, principal, interest and attorneys' fees, less the credit referred to.

"I find that the defendant has interposed no equitable reason to this court intitling him to any relief sought in his pleadings, and find that he has not offered to do equity, and render judgment for plaintiff in accordance with the pleadings on file.

                        "Geo. C. O'Brien, Judge Presiding."
                

Plaintiff in error's first two propositions practically raise the same question, and that is that the instrument referred to as an "absolute assignment," executed by plaintiff in error, in which he assigns all his interest in and to the lands upon which he had executed deeds of trust to defendant in error and others to secure the payment of notes given by him to defendant in error and the other parties for borrowed money, was, in effect, a conditional sale executed by him to secure the defendant in...