57 S.W. 922 | Tex. App. | 1900
This action was brought by L.L. Chinski against Jason McDaniel, Brown McDaniel, Dave McDaniel, and J.O. Stoneham to recover upon a note executed by the McDaniels for the sum of $604.75, and to foreclose a chattel mortgage upon crops and other personal property given by them to secure the note. The petition also alleged that Stoneham had received from the mortgagors and converted to his own use eight bales of the cotton covered by the mortgage. The plaintiff further alleged that he held as collateral security for the note sued on two notes executed by the defendant Jason McDaniel to the defendant Brown McDaniel, and by the latter indorsed to the plaintiff; *505 that these notes were given for the purchase money of a tract of 21 acres of land conveyed by Brown McDaniel and his wife, Carrie McDaniel, to Jason McDaniel, and were a vendor's lien thereon. Plaintiff prayed for judgment against the defendants Brown McDaniel, Jason McDaniel, and Dave McDaniel, for the amount of their note, and for foreclosure of the chattel mortgage; and against Stoneham for the value of the eight bales of cotton; he also prayed for judgment against Jason McDaniel and Brown McDaniel for the amount of the notes given for the land, and for the foreclosure of the vendor's lien thereon. Carrie McDaniel, joined by her husband, filed a plea of intervention in the suit, alleging that the twenty-one acres of land upon which the vendor's lien was sought to be foreclosed was the homestead of herself and husband, and that the attempted conveyance thereof to Jason McDaniel was void because it was made for the purpose of securing the plaintiff in the payment of the note sued on by obtaining the notes of Jason McDaniel and having them transferred to the plaintiff; and that the plaintiff knew that the land was the homestead of interveners, and had notice of the purpose of the conveyance and the execution of the notes, and that said notes should not be adjudged a lien on said land. The defendants excepted to the petition that it presented a misjoinder of causes of action, and asked that it be dismissed. In view of the disposition we make of the case, other defensive pleas need not be noticed.
J.O. Stoneham, as claiming an interest in a part of the property upon which the plaintiff was asserting a lien, was properly joined in the suit as a defendant. Hall v. Hall,
Upon the assignment of a negotiable note as collateral security, the assignee becomes the legal owner and holder thereof, and may maintain a suit thereon in his own name against the maker and indorser. His right of action thereon is separate and distinct from that on the principal debt. If the parties are the same, there is no reason why he should not join the two causes of action in one suit. But where the parties are not identical, the causes of action can not be joined. Stewart v. Gordon,
The judgment of the court below will be reversed for the refusal of the court to sustain the demurrers of the defendants Jason, Dave, and Brown McDaniel, as to misjoinder of causes of action, and the cause will be remanded with instructions to the court below to sustain said demurrers, and if the plaintiff should decline to amend, and elect one of said causes of action upon which to maintain his suit, to dismiss the *506
same. Clegg v. Varnell,
Reversed and remanded.
