78 Tex. 251 | Tex. | 1890
This action was brought originally by John T. Craig, who sued as assignee under an assignment for the benefit of creditors made by C. W. Israel & Co., but the assignment under which he claimed having been adjudged invalid he subsequently took a nonsuit.
The action was brought against J. W. and R. D. Welborne on a note which they had executed to 0. W. Israel & Co., of date October 1, 1885, for 81606.06.
On January 4, 1884, one A. C. Jacobs made an assignment under the
That estate owned a house and lot, and on June 10, 1885, that was sold by Archibald to J. W. "Welborne for the sum of $3000, one-half of which "was paid in cash and for the balance Welborne executed a note to Archibald maturing on or before August 1, 1885, the latter executing to Welborne a bond for title.
' The evidence shows that about June 15,1885, Welborne executed a note to Israel & Co. for about $1545, which it is claimed by the defendants Welborne was executed for money borrowed by J. W. Welborne from Israel & Co., who were hankers, with which it is claimed that the note executed to Archibald was paid.
In renewal of the note last, named the note sued on in this case was executed.
'■ Archibald resigned his position as assignee of Jacobs’ estate and John-T. Conn was appointed in his stead, but he having resigned, appellant Slaton was appointed assignee and duly qualified.
Before Craig took a nonsuit Conn intervened in the case as assignee of Jacobs’ estate, and on his resignation the intervention was continued by Slaton.
The pleadings in intervention in effect assert that the note sued upon equitably belongs to the estate of Jacobs, and asserts that the second note executed by J. W. Welborne to C. W. Israel & Co. was not given for money borrowed with which the note for balance of purchase money executed to Archibald was paid, but that the same was'executed without any consideration running from Israel & Co. for the fraudulent purpose of giving the transaction the semblance of a loan, when the real transaction was the execution of that note on no other consideration than the surrender by Archibald of the note first executed to him to secure a part of the purchase money for the house and lot sold to Welborne.
1 If that was the base, as,between Israel & Co., J. W. Welborne, and the estate of Jacobs there can be no doubt that the equitable right to that note or its proceeds was in the estate of Jacobs, and his assignee might have enforced it.
If such was the sole consideration for that note the right to the note now sued on or the sum evidenced to be due on it, it having been given as is conceded in renewal of the second note, is in appellant Slaton, and the fact that it was signed by R. B. Welborne as well as by J. W. Welborne is a matter of no importance.
The evidence shows that Archibald was assignee of Jacobs’ estate and that he was and long before had been the cashier and practical manager of the bank of C. W. Israel & Co. when all those transactions occurred.
The evidence further shows that he made a deed to J. W. Welborne for the house and lot on June 15, 1885.
The evidence further tends to show that the bank had no money to loan, and was in such condition that it was very desirable to have paper which it could use as collateral security to prop up for a time a credit it may have had but was not entitled to.
It is evident that there was a strong desire so to use both notes executed .to Israel & Co., and the reason for taking the last evidently was to get a note with two names on it, which it was thought would stand better in the market than one with only one name, although the parties seem to have been conscious that the name of E. D. Welborne would add no real value to the note.
The court instructed the jury to find a verdict against appellant Slaton, and thus took the case from the jury.
In view of the disposition that will be made of the case we deem it improper to comment upon the evidence, but feel constrained to hold that there was evidence tending strongly to prove such a state of facts as would entitle appellant Slaton to recover as against J. W. and E. D. Welborne and Israel & Co. the principal and interest on the note sued upon, and the court below erred in not submitting the case to the jury on a proper nharge.
If appellant Slaton shall establish his right to recover we see nothing in the evidence to deprive him of a lien on the property sold by Archi- ■ bald to J. W. Welborne to secure the payment of the judgment, for there was no agreement that the ordinary vendor's lien should not exist, nor was any security taken for the unpaid purchase money that would operate ■a waiver of such a lien.
In the adjustment of the rights of the parties C. W. Israel & Co. would jseem to be proper parties, and they were so made, but being nonresidents of the State they have not been so served as to give the court jurisdiction over them.
They ought to be.brought before the court if possible, but if this can not be done the action may proceed without them and the rights of the parties before court adjusted.
M. B. Schuler, F. M. Davis, and C. W. Easley came into the case, and we may say that no one of them shows any right that can defeat the claim asserted by appellant Slaton if he establishes it, for they all claim as creditors of Israel & Co. through garnishment proceedings against the defend
What the right of Davis and Easley may be in case Slaton fails to establish the claim asserted by him is not before us for decision.
For the error of the court in instructing the jury to find against appellant Slaton, its judgment will be reversed and the cause remanded.
Reversed and remanded.
Delivered October 24, 1890.
