129 S.W.2d 795 | Tex. App. | 1939
This suit was instituted in the district court of Dallas County by the appellee, The Dallas Joint Stock Land Bank of Dallas, against Eugene Lamorere of Wichita County, O. P. Harlan, Warren B. Tayman and Charlsie Tayman of Jones County, Sallie Davenport of Bexar County, and appellant, Henriette Thane, of Jones County, individually and as independent executrix of the estate of her deceased husband, William Thane.
The suit was to recover the balance alleged to be due on a promissory note executed by Eugene Lamorere, payable to appellee, at Dallas, and to foreclose a deed of trust lien executed by him on land located in Haskell County to secure the payment of the note. It was alleged that all of the other defendants except Henriette Thane had assumed payment of all, or a portion, of the note and that William Thane, deceased, had assumed a portion of it.
Appellant, Henriette Thane, filed a plea of privilege to be sued in Jones County, the county of her residence, which was controverted as provided by the statute and upon a hearing by the court of the issues made upon the plea of privilege and controverting affidavit, the plea of privilege was overruled. Appellant duly excepted, gave notice of appeal, and perfected an appeal to the Court of Civil Appeals of the Fifth District. Upon an order equalizing the dockets of the Courts of Civil Appeals, the Supreme Court transferred the case to this court and the record is now before us for review. *797
Appellee introduced in evidence the deed of trust executed by Eugene Lamorere, which was duly acknowledged before a notary public. It also introduced the note executed by him and a release that had been executed by William Thane during his lifetime to Warren B. Tayman, releasing a deed of trust lien on the land, which lien had been held by William Thane. In the release it is stated that O. P. Harlan had theretofore conveyed his undivided one-half interest in the land to William Thane and that William Thane expressly assumed the payment of one-half of the indebtedness due against the land. This release was signed and duly acknowledged by William Thane before a notary public. Appellant also introduced an order entered by the probate court of Jones County, admitting to probate the last will and testament of William Thane in which he bequeathed his entire estate to appellant, his surviving wife, subject only to the payment of his just debts, and appointed her independent executrix of his will. This constituted the only evidence introduced upon the trial of the plea of privilege and appellant contends under a number of assignments of error that it was wholly insufficient to form the basis of a judgment in favor of appellee and denying her plea of privilege to be sued in Jones County, the county of her residence. She contends, first, that her sworn plea of privilege was, in effect, a plea of non est factum and that the deed of trust, although duly acknowledged before a notary public, was insufficient to prove that Eugene Lamorere had promised to pay the obligation in Dallas County. She makes the same contention with reference to the release executed by William Thane, deceased, asserting that, although it was duly acknowledged before a notary public, it was insufficient, as against her sworn plea of privilege, to establish the fact stated therein that William Thane had assumed a portion of the indebtedness sued upon. Secondly, that the evidence was insufficient to establish the fact that she was independent executrix of the last will and testament of William Thane, or devisee under his will, and the court erred, therefore, in overruling her plea of privilege as such. Thirdly, that she was not a necessary party to the suit and that neither she nor any of the other parties thereto being residents of Dallas County, venue could not be maintained as to her in that county in the face of her plea of privilege under Sub. 29a of Art. 1995, Vernon's Ann.Civ.St.
Appellant's first contention challenges the sufficiency of the evidence to prove the execution of the note and deed of trust by Eugene Lamorere. The deed of trust and note were offered in evidence and admitted without objection on the part of appellant. In discussing similar questions, some of the courts have suggested a distinction between a case in which the deed of trust was admitted without objection and one in which it was admitted in evidence over an objection. Blackerby v. Seale, Tex. Civ. App.
We know of no statute under which the provisions of the quoted article are made nugatory by the filing of a plea of privilege. Our courts, by an unbroken line of decisions, have so construed Art. 3726, R.C.S., 1925, Vernon's Ann.Civ.St. art. 3726, upon the filing of a plea of forgery. Steiner v. Jester,
A reading of the latter article will reveal, however, that such is its plain terms. It, therefore, should not be confused with Art. 3723 and care should likewise be taken to avoid confusion between those allegations which are necessary to constitute a plea of privilege and *798
those necessary to constitute a plea of forgery. Appellant contends that the opinion of the Supreme Court, speaking through Judge Short of the Commission of Appeals, in Johnson v. Dallas Cooperage Woodenware Co.,
In further support of her contention appellant cites us to the case of Blackerby v. Scale, Tex.Civ.App.
In the case of Smith v. Dozier Construction Co.,
In the recent case of Martinez et al. v. Southwest Bitulithic Co.,
Neither the acknowledgment of a man or single woman nor the certificate executed by the officer before whom an acknowledgment is taken is in any sense a part of the conveyance. The certificate is merely a verification of the act of the maker of the instrument and is not essential to its validity. Clements v. Texas Co., Tex.Civ.App.
In our opinion, the deed of trust and certificate of acknowledgment involved here were not only admissible as evidence but, in the absence of controverting proof, were sufficient to establish the fact that Eugene Lamorere signed the deed of trust and the note sued upon which was fully described therein. Appellant's first contention and assignments of error with reference thereto will, therefore, be overruled.
The second contention of appellant is, in effect, that the evidence was not sufficient to establish her official capacity as independent executrix of the last will and testament of William Thane, deceased, nor her status as devisee under his will. Appellee introduced an order of the probate court of Jones County admitting to probate the last will and testament of William Thane. The order shows the application was made by appellant and that she presented the will to the court with the request that it be proved and probated as such. Moreover, in her plea of privilege filed in this case, appellant designated herself as executrix of the estate of William Thane, deceased, and appeared as such. Appellee's allegations in this respect and the evidence afforded by these documents probably would have been strengthened by the introduction in evidence of the oath, if any, taken and filed by appellant in the administration and the letters testamentary, if any, that were issued to her, but, in the absence of any evidence to the contrary, we think the order of the probate court showing the will and application to have been presented by appellant, and her appointment by the court as such, together with her own appearance in the instant case as executrix of the estate, constituted ample evidence to establish her official status as such.
The third contention made by appellant involves the question of whether or not she was a necessary party to the suit as provided by Sub. 29a of Art. 1995, Vernon's Ann.Civ.St. She makes no contention that, at the time of his death, *800
William Thane was not the owner of the property covered by the deed of trust. In his last will and testament he bequeathed to appellant all of his property of every kind and nature, and wherever situated, subject only to the payment of his just debts. It necessarily follows that, subject to the deed of trust held by appellee, appellant was the owner of the property upon which foreclosure was sought. It has been held by an unbroken line of decisions from an early day that the grantee of mortgaged realty is a necessary party to a suit for foreclosure of a deed of trust securing a note payable to the plaintiff. Pioneer Bldg. Loan Ass'n v. Gray et al., Tex.Com.App.,
Appellant asserts that, under the provisions of Sub. 5 of Art. 1995, as amended in 1935, Vernon's Ann.Civ.St. art.
We do not agree with this contention of appellant. If so strict interpretation should be placed upon the amended article, then it must follow that, by analogy, one purchasing property upon which such a lien exists but who does not specifically assume the obligation, could not be sued in the county in which his grantor contracted in writing to pay it, although he would be a necessary party to such a suit. In our opinion, the simple provisions of the amendment cannot be stretched to such lengths. The amendment was enacted for the purpose only of clarifying the confusion that had arisen by the numerous decisions of the courts upon the many complex combinations of facts presented to them under the provisions of the statute. This is clearly revealed by the caption and the emergency clause of the amendment. Under the original statute it had consistently been held by the courts that an executor or administrator was bound by the contract of the decedent in reference to venue. Vela v. Shacklett, Tex.Civ.App.
We have considered all of the assignments of error and propositions presented by appellant and, in our opinion, no error is shown by any of them. The judgment of the court below will, therefore, be affirmed. *801