117 S.W. 1039 | Tex. App. | 1909
Appellee brought this suit against Bat Zeno and his wife Mandy Zeno and W. W. Holland, Jr., seeking to recover upon four promissory notes and to foreclose a vendor's lien upon a tract of land. Bat Zeno was the maker of the notes and no judgment was sought against the other defendants, except for a foreclosure of the lien and for costs.
W. W. Holland, Jr., for himself and as attorney for his codefendants, filed an answer interposing certain defenses. Thereafter Bat Zeno and Mandy Zeno filed another answer signed by themselves individually, in which they repudiated the former answer filed in their behalf, and declared that they had not authorized Holland to file it for them. They also admitted in their answer last filed the material averments in the plaintiff's petition.
The case was submitted to the trial court without a jury and judgment rendered for the plaintiff against Bat Zeno for the debt, and *38 against all of the defendants foreclosing the lien upon the land, and the defendant Holland only has appealed.
The trial judge filed findings of fact, those material to Holland's branch of the case being as follows:
"7. I find that on the 30th day of October, 1907, Bat Zeno and Mandy Zeno executed and delivered to defendant W. W. Holland, Jr., an instrument of writing, duly acknowledged, purporting to be an absolute deed in fee to said land with general warranty, for the recited consideration of $1,000; that at the time of the execution of said instrument said Holland had full knowledge of the fact that the renewed notes sued upon had been theretofore executed by Bat Zeno and delivered to plaintiff's agent, and had full knowledge of the amount and nature of plaintiff's claim now sued upon, and that she was asserting a vendor's lien against said land.
"8. I find that the real consideration for said purported deed from the Zenoes to Holland was an agreement and understanding on the part of said Holland to pay off and satisfy the claim of plaintiff, evidenced by the renewal notes sued upon; that said Holland never paid said $1,000 nor any part thereof as a consideration for said land, and that said Holland agreed with said Zenoes, before and at the time of the execution of said conveyance, to reconvey said land to said Bat Zeno, upon the payment to him by the Zenoes of the amount agreed to be paid by him in satisfaction of plaintiff's claim, with interest and a reasonable fee for his service.
"9. I find that said Holland failed and refused to pay said renewed notes or any part thereof.
"10. I find that Bat Zeno and Mandy Zeno are illiterate negroes, being unable to read and write and unfamiliar with business methods; that they signed by their mark an instrument, purporting to be an agreement between them and W. W. Holland, Jr., dated October 30, 1907; that they did not understand that said agreement authorized said Holland to plead for them the statute of limitation in an effort to defeat a recovery by plaintiff in this suit, and that they did not so authorize him. That they understood said agreement to mean and expected said W. W. Holland, Jr., to pay off and discharge the renewed notes sued upon, and hold the land under their said conveyance to him as security for such advancement.
"11. I find that the answer of Bat Zeno and Mandy Zeno, signed by their marks, repudiating the plea of limitation filed for them by said W. W. Holland, Jr., was fully understood by them and was their voluntary act and correctly stated their wishes in the matter."
These findings fully support the judgment of foreclosure against Holland. They show that his title to the land was held in trust for the Zenoes, and upon an agreement by him to pay the notes sued on himself. While it may be that if they had not filed their last answer, and had permitted Holland to control their case, the Zenoes might have urged the plea of limitation and homestead rights set up in their original answer, as to which, however, we make no ruling. But they had the right to take the case out of Holland's hands and to waive the defenses referred to, which they have done, and, Holland having no substantial interest in the property, and being merely a trustee for *39
the Zenoes, can not urge those defenses. (Hawley v. Whitaker,
The third and last assignment complains because the court rendered judgment against Holland for costs, the contention being that as he was merely a trustee for his codefendants, he should not have been held liable for the costs. The record indicates that Holland, notwithstanding the virtual confession of judgment by his co-defendants, persisted in controverting the plaintiff's right to recover even a judgment of foreclosure as against him, and for that reason we think the court properly held him liable for costs.
No error has been shown and the judgment is affirmed.
Affirmed.
Writ of error refused.
