*1 (Tex. 298 SOUTH WESTERN REPORTER behalf. the by App.) v. way jection because signment inal been stricken from the udice plied ner ler tion. No such plemental petition affords In this condition same. sideration Affirmed. The tenth Booth, O’Neil any plea (Tex. in which the effect of the petition. Upon exception v. Midland 216 S. authority appearing, made to the submission it is based (Tex. and, Civ. new ground been sent of W. 627. president proposition Civ. App.) exception payment. matter contained pleadings evidence of the Mercantile for reversal. App.) make irregularity 250 S. evidence event, of record, was filed appellant, supplemental basis and not present not raised an amended misconception is without W. Co. contract it should supports Bank v. of of issue 4. supported recovery- O’Neil by as- in its merit man Rail prej peti orig sup Civ. Ty im- the 4. ob of 8. 6. chaser. 5. 7. altering act of another. Code representation questions. and deed of lent fraud mortgagee duty resentation porting void as making [Ed. Note.—For other Mortgages <&wkey;l86(6) suit to cancel Contracts Forgery Bills and Deeds Maker Instrument “Forgery” Even if Phrases, voidable at election assert such instrument not be void as is not written. inquire <&wkey;45Deed, forgery. of arts. <&wkey;l deed First and Second instrument altering notes trust, i&wkey;98 void, act procured 979-995, as to title held whether — instrument .common may of —Common-law evidence as to &wkey;>373 another. —instrument forgery, written instrument procured, not assert even voidable. —In procured by of definitions, 1006-1011. he was law was mortgage, held —Maker fraud is only mortgage, it purporting Series, procured by rep- in view of defrauded. “forgery”-was fraud good procured present.jury of fraudu- see alleged, making fraud Forgery.] faith Words to be deed Pen. may pur- of In suit to cancel deed and deed trust 7098.)* (No. et al. v. BELL et ux. RAMIREZ by grantee held to make good mortgagee faith whether Appeals Austin. of Texas. of Civil Court charged through plaintiff’s possession of land July 27, 1927. ques- to make as to title tions. Aug. Rehearing, 6, 1927. On Motion Mortgages <&wkey;l54(2)Mortgagee 9. held — <&wkey;232(l) purchaser ab- Vendor 1. —In recitals In mort- inquiry, purchaser proper land is sence of gagor’s knowledge coming chain of title and' facts pos- charged session. of one in with notice claim examining attorney of his title. Mortgagee legally making loan on land was rule, possession general is con- As charged with all recitals in mort- possessor’s or,claim and notice of structive gagor’s chain title and such facts as cama thereof, purchaser puts toas nature on examining charges and, law in absence of possessor’s on claim purchaser with notice of Rehearing. On Motion proper inquiry presumption would disclose <&wkey;(86(2) Mortgages suit to cancel —In trust, pleadings deed deed in held to purchaser <&wkey;232(5,6)— Vendor and Pur- ¡issuegood mortgagee. faith may rely alienating chaser deed giv- cancel deed deed of trust although grantor pos- absolutely, grantee thereunder, pleadings en session. mortgagor good held tiffs in issue grantee rely gran- Purchaser from mortgagee taking mortgage prop- faith absolutely alienating although tor’s deed erty grantor. possession, grantee’s grantor continues in except failure to record deed for where continued Mortgages <&wkey;186(6)Inadequacy It. of con- — time does not affect rule. unreasonable mortgagor’s deed sideration in cumstances cir- mortgagee’s held to issue raise &wkey;o232(5,6) Vendor good gagor’s grantor taking —Failure' deed of trust while faith mort- register determining promptly may deed be considered possession. inwas prudence whether reasonable trust, deed suit to cancel and deed of in- requires purchaser grantee inquire from as adequacy consideration in deed with other grantor’s possession. circumstances sufficient to raise register grantee taking promptly good mortgagee’s Failure of faith in may accompany mortgagor circumstance, possession, grantor when others while of evidence or lack determining regardless whether reason- prudence requires grantor person able inquire possession. bought into land. whom see q&wkey;ITor other cases and KEY-NUMBER and Indexes 16, 1927. *Writ el error refused November *2 RAMIREZ v. ;.w.) (298 judgment Mortgages <&wkey;154(3)Mortgagee canceling opinion, with ac- his deed. See — occupancy' knowledge grantor’s tual 298 S. W. -. attorney’s with his The correctness of the directed verdict designation recorded after homestead establishing foreclosing and the trust deed mortgagor. deed to depends upon lien whether the evidence trust, mort- and deed of cancel deed to conclusively shows Wendlandt abe bona plaintiff’s having gagee, occupancy actual fide home, property and use of pertinent facts, large which are in desig- that homestead dispute, measure without substantial fol- in full in ab- ex- set out tract nation of another lawyer mortgagee’s low: stract of approved, recorded after amined and ignorant Mexicans, Ramirez and wife were mortgagor. tiff’s deed to English speaking sufficiently ordinary people engaged transactions &wkey;>228(4),239(9)— and Vendor farming. they bought property In 1912 grantor and innocent holder In suit between (then land) Seelig $7,000, raw for grantee, in dis- under paragement immediate his grantor’s duly paying $1,000 executed deed cash. The balance had admissible, purchas- fide but such $1,860 bona 1922, reduced to when it was ex- acquire must without er or innocent holder notice. annually; tended so as to $310 off $1,434.20 and to trust holder In suit between and innocent family executed.. Ramirez and his lived on grantee, in dis- under paragement immediate his property continuously purchase, the put part after duly executed cultivation, and made small some form basis of not admissible and cannot improvements, residence, use, suited to and judgment findings, fact or for occupancy by persons as a farm innocent holder acquire limited means one must without notice. and station. In the summer $9,000 1925 the $15,000. was worth from $5,000 Wendlandt loaned the Appeal Court, from District Travis Coun- $9,000 $10,000 estimate'of value at ty; George Calhoun, Judge. purposes. for loan valued against Suit Jesus Ramirez and wife $10,000 $15,000. reputable A loan Harris Bell and another to cancel a deed mortgage company applied to whom Bell and celing trust. From a a deed of can- placed $10,500, for a loan the value at awarding plaintiffs willing 6%, to make a loan of at finding against therein, and per cent,, but “turned it down” on establishing foreclosing the deed possession. represented Ramirez BeU trust, plaintiffs appeal. Reversed re- company to this $16,750. was worth manded. Hart, Hart, Austin, ap- Patterson & for The Bell deed was executed under these pellants. circumstances: Ramirez had been indicted Garrett, Goldsmith, Austin, & Brownlee Bastrop county felony charges- on four Smith, Jr., Odessa, appellee and W. R. liquor violating engaged law. He Bell "Wendlandt. him, executing to defend on June Bell, Austin, Bell, Harris Marshall O. $1,000 note which Bell claimed was Antonio, Pickle, of San and D. J. Warren W. only retainer, agreed and which he Moore, Dickens, Cofer, O. and Cofer & all of farm, day secure lien on and the same Austin, appeUee BeR. desig- him Bell had execute an instrument nating unimproved Austin, lot j. McOLENDON, Refugia occupied, C. Jesus and never he had as the wife, family. husband and sued Harris Bell himself and This Wendlandt, Jr., (1) county July Bastrop and Charles appellants’ recorded in cancel 1925, conveying deed of June execution of -Bell’s deed. prepared to Bell their homestead of 121.64 Bell also $1,000 acres a trust secure the county; (2) of farm land in note for execution Ramirez wife, but, upon ascertaining cancel Bell’s deed of Wendlandt from another August 6, 1925, securing $5,000, that a lien on a homestead would property. destroyed valid, not be it. Ramirez and jury; judg- verdict; signed acknowledged Trial . (before directed wife notary (1) Bell, canceling employed ment: As to office) his deed in Bell’s the Bell awarding appellants $3,136.15 against July 25, 1925, deed on Bell it to be him; Wendlandt, sale; establishing as to a conditional Ramirez and fraudulently claim- wife foreclosing Separate represented his trust deed lien. it to have been appeals (1) by mortgage Ramirez and wife to them as a secure Wendlandt; Bell, Austin, note. born and reared in lawyer years’ practice. wife. young of about 2 appeal affirming years old, we are had lived Austin
@=»Eor
eases see"same
KEY-NUMBER in all
and Indexes
298 SOUTH WESTERN REPORTER
taxes
said,
October
one for
gether
company’s books,
delivered to Doom an abstract of
deed and the
to
6, 1925, by
I
that
owned the
Mexican,
whether he
Mr. Bell
close to
not
Mexican
tonio.”
December
Bell.”
recorded.
Seelig
inal Ramirez
Judge
Two
written
Wendlandt had
infirmity
and he said
Walter
Mexican
out
car or
spoke
him.
time
ever
agreed
landt
tified
his
having
applications
the
was
that
from,
Wendlandt
make
was
ed in
a little
went
They stopped
certain
He
The first
since
and
“I
While
date..
which he
see
in the front
three
inspection,
I
knew
asked
renting
left their
loan business
seen
‘No’;
He is
was
paid
and then
a
was out
($439.75), total, $1,873.75;
Doom should
with
debt
towards
any
the
later)
failed,
recognize
opinion (supplementing
then in funds.
Mexican
July 4,
was
loan
man before
I
business
stopped
him
All
returning
in the Ramirez-Bell
him.
(about
residue
said, ‘Howdy,’
he was
loan
farm.
the
off the
him
old man
loan was consummated on
later Doom
Bell,
per
Doom
and had been
going
loan and
agreed
lot.
my
‘No;
this was done
Bell
going
it.
man who
was
if
deed which
abstract,
certified
made to Wendlandt two
due October
ear,
going
.(quoting
yard when,
fellow
cent,
at Ramirez’s
the
if
English,
1925,
Wendlandt asked
examination
I do not know
the
back in
the
loan about a week
the old
I
Bell
refused
taxes,
boy
to look after
show
When
dealings
going
executing the trust deed
off
required recording
actual
then;
talked
ear,
I
approve
security
notes,
to work the
middle of
Mexican I were
Jesus Ramirez. At the
1927, respectively,
together
the farm
left there.
he saw
answered
inspect
he
the loan in
his father
including it,
that,
hoy
inspected
upon
The second
good title in Harris
and then I asked him
Wendlandt):
to move to San
and Mr.
I
debt
gave
Austin
the first
man
mortgage company,
because Wendlandt
I walked
in the real estate
since he was
bought
first
two for
intimately;
with him.
supposed
owned the
he
then
the Mexican.
cowlot,
subject
returning
the title. Bell
was
abstracts,
if
August 4,1925.
($1,434.20)
did,’
with the
house,
it.
the
Wendlandt a
on the
1930. Wend-
an
July, 1925,
spoke
spoke
the abstract
yet
“No”;
Walter
conveyance
time
he
I saw
the
good.
opinion
then been
the
Bell
I saw
$500,
terminat-
in issue.
place,
certified
whether upon
or
to have
August
money.
Seelig),
where ness of
verbal
apart.
that I
land.
farm,
place
place
I did
after
right
orig-
if
that
any'
“to-
An-
cer-
and
due
him
Mr.
me.
the
the
the
see
He
or
a
I
tion
imputes
estoppel
39
Ed.)
ror
Bell’s deed not
landt was
notice of
216
App.)
jurisdictions
the effect that
nied) ; Brooker
95 Tex.
erfield,
ment
es
law
deed in
words,
inquiry.
Wendlandt was
Civ.
estate
warring
Tex.
'
the Bell
Tex. Civ.
the
grantor
an
session,
v.
Civ.
a
the
the
a
Stewart,
constructive
or
erence to the claim of
ter of
above order.
dence were sufficient to Wendlandt
(writ
and relied on his
“One
We will consider these contentions
purchaser
Some
(1) Appellants
mortgage
claim,
Cyc. 1753;
Cooper,
alienation
denied);
terms
absence
a
S.
claim
App.) 268
Doom’s
substance
App.) 152
matter
649,
Appellants’
The facts and
Generally speaking, possession of real
269 S.
forgery
law,
“is
three
disclose
difficulty
E.
purchaser
the
as a
to a
210,
that he has
jurisdictions
the rule followed
v.
22 Tex.
error
65
when Wendlandt
appellants’
Eylar
App. 253,
grantor,
of the deed as a declaration
equivalent
196; Sperry
presumption
Tiffany
a
instrument as their act.
is held
Templeman,
63 Tex.
Tex.
raised the
upon inquiry
that,
conveyance-an
W.
matter
66
Bryant
notice
upon
this
and void.
form and in terms
proper inquiry
denied);
law,
him;
S.
it. This rule is
S. W.
v.
grantor,
Civ.
being
321;
Tiffany,
own
W.
with notice
appellants’
evidence,
Eylar,
representation
makes the
Wright
in this
less than it cost Collins, 13 before. 61 So. Babcock Ala. 60 only Bell’s deed Rep. 503; had been executed about a 61 N. W. 51 Am. St. Minn. Eranzen, before Iowa, 25, month with Wendlandt Hume v. 73 34 N. W. only began; days Saunders, before was executed Ark. Gaines 322 S. 7 W. designated unimproved Ramirez Austin, lot on, judgment which he had never lived The trial between Ra- court’s homestead; and this was mirez and and Wendlandt wife reversed county recorded after and cause remanded court for a claimed to be an innocent good, the same with lien knowledge landt, Jr., tiffs landt to inform himself failing tiffs’ notes, asking said pancy them hereinbefore set out.” tent fore foreclosed. asserted that he was an innocent on advice of his alleged he that he had no infirmity chase of the date and the date it was of that deed and its out, and the nature of through said lowing reasons: the verdict recited He set having by and found new tion recite he possession peal, that there “It was That Wendlandt It is further We overrule Appellants’ pleadings Reversed used disposed innocent holder inspected the On Motion land was case to the herein issue of his execution of the allege: land, by plaintiffs led to a trial. suit, based Appellee deed was their said said made the loan fraud and mistake and $5,000 cash made that he owned the fact that it was using exercise, therein. He also so that he filed a cross-action therein.” alone appellants in premises, and remanded. ordinary diligence proper. In this owners knowledge then worth $125 inquire, knowing property, in addition to alleged knowledge Ramirez-Bell have ascertained claiming, in fact knowledge using Wendlandt. ownership and furnished abstracts Wendlandt had, “was pleading of said Rehearing of the said loan to the said property as a on this of pleading consideration; ordinary diligence would the said plaintiffs'’ Ramirez-Bell fides, except the respects the said recitals, it as that: inspected said of put upon in 1910 and that upon representation recorded; also, that using, be established as set possession, and notice the nature and mortgage, issue, sufficient homestead, or notice of that, and was Wendlandt is not of no facts forth resisting by Appellee first contends Charles Wend- recorded, setting up Charles Wend- claim, and, that and the fact 40 in notes alone. the title was affirmatively and that the directed acre. pursued homestead, their since purchaser, effect as therein Bell’s giving RAMIREZ v. deed; occupying the Ramirez but took by. obtained because to raise occupy- allega plain- date; They occu- Bell. take any Ap- fol- up- (298 S.W.) his County ex- be- set its its be n extended; and that when the deed of trust evidence of 434.20, and there was in issue the ion in bona fides of 75 taxes. not discovered until after vendor’s lien to secure notes 298.40; 10, 1922, lot 23 in Ed nection, raise the issue of Wendlandt’s bona terial. The Ramir.ez was executed the amount still due was appear, called for a submission landt’s own even if there were in the total but it jury upon all bearing thereupon which the evidence raised. and showed a total consideration of of which scribed in this Ramirez and granted consideration troduced in evidence and Bell. tive foreclosing they contained. dence homestead tion question chain of atively establishing stances prayer Ramirez, on examination is not dor’s abstracts We should [12] Wendlandt all property introduction of this $7,000. dates records), Seelig, being deed, together shown, parties to It appears this pleadings subdivision. recorded Deed Records however, from Wendlandt’s cross-ac- noted, paid Seelig been reduced to on November testified is next contended that there was notes to the amount of showed title, and therefore he was not which was introduced Seelig conveyed It designation cancel case was pleadings that recorded any conveyance prayer We think this inadequacy involved in this suit was lot Wendlandt, paid by Seelig’s and that consequently state, however, record dates. These were designation, deed was lot 22 the facts and circumstances in volume of both amount have been further contends that the trust these for the land was It his trust deed sufficient, suit, with the other circum handed by Wendlandt, fact no evidence of both Ramirez and wife Ramirez-Bell cash, Ramirez to additionally subdivision; (the the total is was not a 26, 1910, Wendlandt appears from this deed retained a deed of'that volume of consideration abstracts and quite was dated passed parties clearly put 48, p. 252, denied Ramirez’s 1912 deed in evi- issue was and their aggregating participated down., apparent original opin- showing on November consideration property issue to and the lien property in $6,250. the title conveyance Seelig. link in his error was due $439.- this were ven- think, whereas, by lien and p. mistake, and his part It $6,298.- respec- $7,000, affirm- imma Wend- *6 fides,, what does both con- also The $1,- $6,- up- in-, of
298 S.W.—59 WESTERN REPORTER 298 SOUTH
Wendlandt’s tation: cumstance ney corded until had actual stract of title and showed on its face use of designation designation evidence that he days making be home, passing before the attached to is a the loan. onty was set expressed in the motion Doom brought actually remaining examined thereafter. out Whatever evidentiary home knew we deem full occupancy and following quo dismiss case on a and his significance Wendlahdt in the ab- matter. approved, executed purpose worthy not re- family attor- This cir- by defendant. defense which the issues, stitute its issues, there was a 3. Trial 4. Trial answer miss case on jury urged. pendent ground powered Trial Where Where failed to submitted, trial court <&wkey;356(6) <&wkey;356(6) <&wkey;35f>(6) material jury jury findings substitute ground agree was unable to is ground party alleging issues, was not unable to answer material mistrial of the unable —-Trial is —Where on —Mistrial waived defense error for trial court independent which has been waived material trial court empowered jury findings agree agree court cannot resulted, which was did not defendant. issues. was not em- is unable case. on material on material ground on inde- urge. to sub- where dis- innocent “In a between County. Court, ílrror from District Dallas under his immediate holder disparagement duly Action R. E. Ratcliffs L. D. executed incompetent Ormsby dismissal, Judgment and cannot others. admissible and is not form the basis fact, or be the plaintiff brings error. Reversed and re- findings.” predicate for a manded. Davis, Synnott Hatckell, Dallas, & proposition abstract This correct as an plaintiff in error. in fact of law there is where Burgess, Burgess, Brundridge Chrestman & quotation, purchaser, or, expressed in the Elliott, Dallas, L. E. defendants a bona holder.” But to “an innocent in error. must ac- one holder or innocent prop- quoted quire If the without notice. HICKMAN, day J. At a former of this purchased one where correct osition were term an in this rendered cause imposible notice, with case affirming the the trial court form absolute to set aside a deed ground assignments presented holding for value under disclosed and there was funda- grantee in such deed. apparent. Upon mental error more mature The motion overruled. *7 rehearing consideration of the ease on transcript, have concluded that without facts, reference to the statement discloses judgment, error sitating the rendition neces- original opinion its reversal. The withdrawn, therefore be will and this (No. 307.) al. et v. ORMSBY RATCLIFFE rehearing substituted therefor. Appeals assignee Repub- Texas. Eastland. Plaintiff of Civil Court 24, Company Texas, June Rubber lic a Texas cor- poration, sued the defendant error for the Rehearing Oct. Denied owing him, balance signee as as- company, <&wkey;I9S by jury Judgment under the of a terms answered' —Issues facts, evidentiary merely corporation insuffi- between the contract fendants and the de- support cient to of dismissal. error, whereby certain automobile recover, assignee In action of creditor to tires and other accessories were sold or con- account, of an issues balance answered affirma- signed to defendants error. The defend- foreign corpora- tively by jury as to whether demurrers, in error ants a answered various corpo- of a Texas tion induced formation general denial, following special agent transacting to make as its being merely ration fenses: Texas, business dentiary judgment historical evi- That, while First. the contract declared facts, were insufficient a. purported consignment contract, to be a of dismissal. in truth same was fact a sales con- <&wkey;>35l request having 2. Trial been —No' tract, its terms violated the anti- issues, made to submit omitted Texas, of the state trust laws in that it was waived. n in restraint of trade. ground, court fails to submit of re- Republic That Second. Rubber Com- covery special pleaded, defense and there is Youngstown, pany Ohio, foreign corpo- request omitted, no such issue or issue or submit the | ration, party thereby real was the contract sued issues are waived. <§x»For in all Indexes cases see same KEY-NUMBER