Paris Exchange Bank v. Beard

49 Tex. 358 | Tex. | 1878

Gould, Associate Justice.

This is a contest between the holders of three several non-negotiable' promissory notes or obligations, given at the' same time, and in payment for the same land, but maturing at. different dates; the appellant, the assignee of the note first due, claiming that his lien is entitled to priority. This is the sole ground of priority alleged in appellant’s pleadings. It appears, however, from the evidence, that the note which appellant holds was first assigned by the payees; and it is claimed, in the assignment of errors and in argument, that this priority of assignment entitles appellant to a priority of lien.

The other notes were also transferred before maturity, and the holders claimed, and by the decree of the court were allowed, to share pro rata with appellants in the proceeds of the sale of the land.

Our opinion is, that the note held by appellants, though maturing first, was not, by reason of that fact, entitled to precedence in the appropriation of the proceeds of the land, but that the effect of the transaction originally was to secure all the notes by the same lien. Such is the conclusion to be implied from former decisions of this court, and such we think to be the rule best sanctioned by authority, and best founded in principle. (Cannon v. McDaniel, 46 Tex., 313; Tinsley v. Boykin, 46 Tex., 592; Ellis v. Singletary, 45 Tex., 27; McClintic v. Wise, 25 Grat., 463 (18 Am. Rep., 694); Nelson & Hatch v. Dunn, 15 Ala., 501.)

Indeed, in argument, appellant has not urged that ground of precedence, but seems mainly to rely on the priority of his assignment. He cites decisions from the courts of Virginia and Alabama which support his claim as the first assignee. (25 Grat., supra; Cullum v. Erwin, 4 Ala., 452; 9 Ala., 645; 25 Ala., 327.)

On the other hand, a different rule is maintained in the courts of Pennsylvania and Mississippi. (Donley v. Assignees of McKean, 17 Serg. & R., 402; Mohler’s Appeal, 5 Barr, 421; Henderson v. Herrod, 10 S. & M., 631.)

We find it unnecessary to pass upon this question. The right of the appellant to relief must be maintained on the case stated in the pleadings. It nowhere appears in the pleadings that the assignment to appellants was prior to the assignments to the other note holders,—the intervenors. • Whatever may be the rule in such cases, the court did not err in disregarding, as grounds for relief, facts which, though proven, were not alleged; and .therefore did not err in awarding equality to the assignees and holders of the three unpaid purchase-money notes. The judgment is affirmed.

Affirmed.