Wylie v. Hightower

• Decision Date: 11 June 1889
• Citation: 11 S.W. 1118
• Parties: WYLIE <I>v.</I> HIGHTOWER <I>et al.</I>
• Court: Texas Supreme Court

11 S.W. 1118

WYLIEv.

HIGHTOWER et al.

Supreme Court of Texas.

June 11, 1889.

Commissioners' decision. Appeal from district court, Nolan county.

W. K. Wylie sued W. T. Hightower and J. A. Mangum upon a promissory note dated February 28, 1883, due four months after date, for the sum of $3,250, with interest on said amount at the rate of 12 per cent. per annum from September 25, 1882. April 7, 1886, trial by jury, and a verdict for amount of plaintiff's demand against defendant Hightower, and a general finding in favor of defendant Mangum. Judgment was rendered accordingly. Motion for new trial filed April 8, 1886, amended April 19, 1886. Motion overruled April 20, 1886, and appeal taken. It was proven that defendant Mangum was surety on the note sued on; that that fact was known to plaintiff at the time he signed it. Hightower promised Mangum that he would execute a mortgage in plaintiff's favor, to secure him. The property to be mortgaged, and details respecting it, were left to Hightower. Mangum knew what property Hightower had. Hightower, on December 5, 1883, executed a mortgage, and filed it in the county clerk's office of Runnels county. A copy of it was sent to Nolan county for record. Hightower did not deliver the original mortgage he executed to plaintiff, but left it with the clerk of Runnels county. Hightower was deputy clerk of Nolan county when the mortgage (copy) was received there. It was recorded in that county at full length, in the book of mortgages and sales, and by making proper entries in the chattel mortgage record. Neither the original, nor a copy of it, was left in the office in Nolan county, as a paper of the office. Hightower executed this mortgage, conveying to plaintiff an undivided two-thirds interest in a certain flock of sheep owned by Hightower and Midgett, and a note of said Midgett, executed to him for his interest in said sheep, the note being for $3,465. The mortgage recited that it was given in consideration of the unpaid note sued on, due plaintiff, for $3,250, and for the further valuable consideration of Wylie having become security for Hightower in the sum of $5,000 to Coggins & Bro. Hightower retained possession of the sheep mortgaged, and also the Midgett note. Midgett subsequently returned the 1,200 sheep he had bought from Hightower, who canceled and delivered to Midgett the note, and Hightower executed a mortgage on these sheep to defendant Mangum. Plaintiff and defendant Mangum talked about the property included in this mortgage, and started to Nolan county to examine it, but the trip was abandoned. On August 8, 1884, another mortgage was executed by Hightower, in favor of plaintiff, in lieu of the above, conveying to the latter his interest (two-thirds) in certain sheep owned in common by Hightower and Midgett, in Nolan county, about 4,000 head. This mortgage recited that Hightower was indebted to plaintiff in the amount of the note sued on, $3,250, and that Wylie had, at his request, become surety on a note for $5,000, to Coggins & Bro., and extending the time for the payment of both notes to January 1, 1885. This mortgage further provided for the sale of the sheep mortgaged, upon default in payment, and that the expenses of sale, etc., should be first paid, and then for the payment of the $5,000 note in full, and after that the $3,250 was to be paid in whole or in part. The note sued on was due June 28, 1883. Both Hightower and Wylie stated that they did not recollect that anything was said about extending the time for payment of this note when the second mortgage was given. The former testified that his understanding was that it was extended; the latter, that he did not intend to do so. Mangum knew nothing of the release of the first mortgage given by Hightower by the execution of the second on August 8, 1884. Wylie testified that the reason for canceling the first mortgage and taking the second was that he was informed that it was void as to Hightower's creditors, because it had not been properly recorded. He delivered the first to Hightower upon his execution of the second mortgage.

The assignments of error are: (1) The verdict of the jury, in so far as the same is in favor of defendant J. A. Mangum, is contrary to the law and the evidence in this: That the evidence conclusively shows that in releasing the mortgage of December 5, 1883, and taking that of August 8, 1884, in lieu of and as a substitute therefor, defendant Hightower and plaintiff were but carrying out and performing an agreement made by said Hightower with defendant Mangum, to the effect that he (Hightower) would secure the note sued on, by executing a mortgage in favor of plaintiff on his (Hightower's) property; that, it having been discovered that the first mortgage was defective, said cancellation thereof, and taking another instead, was because of said defects, and for the purpose of more perfectly carrying out and performing the object agreed upon by and between defendants Hightower and Mangum; and that said Mangum, in consenting to said promised effort to secure said note without stipulating the manner in which the same was to be done, then and there consented to each and every...