On Motion for Rehearing.
All parties actively participating in the appeal have filed vigorous motions for rehearing, seeking divers specific remedies, including reformation, rendition, and af-firmance. Those motions are enlightening and informative, affording a clearer view and a more helpful presentation of questions of both law and fact involved in the appeal. In response to those motions, this court has gone back through the record and thoroughly reconsidered the whole case, in consequence of which we are impelled to a stronger adherence to or extension of some of the holdings and revision or modification of others.
1. We adhere to the holding that under the evidence in the case the trial court was not authorized to assume that the State Bank became a shareholder, with the Fernandez brothers and Celaya, in the joint adventure for the purchase of the Parker-Barreda notes. We now go further and hold, as a matter of law, under the undisputed facts, that the bank was not bound by Celaya’s acts purportedly in its behalf in that matter.
2. While adhering to the ruling that under the evidence A. H. Fernandez became personally liable to the bank upon his original note for $25,000 and the several renewals thereof, we hold, further, that, when Celaya removed the last of said renewals from the bank, marked the same paid on the books of the bank, and presented the Parker-Barreda collateral note No. 4 to the board of directors and obtained that body’s approval of that note as a substitute for the withdrawn personal *940obligation of Fernandez, the bank was bound by that approval, and thereby released Fernandez from the personal obligation. It does not seem to matter whether Celaya properly or improperly abstracted and canceled the Fernandez note; there is no showing that he fraudulently obtained the board of directors’ approval of the Parker-Barreda note as a substitute for the personal obligation, which approval the board gave without criticism. The board had that power of approval, and, having given it with full knowledge of its effect, the bank was bound thereby, and Fernandez’ release from personal liability was thereby effectuated. This conclusion requires the withdrawal of our original holding that Fernandez was personally liable upon the $27,000 note upon which the banking commissioner sought recovery against him.
3. We recede from the holding that the trial court erred in ordering the sale of the land involved through the receiver having control and possession thereof under the orders of the court in which the receivership is pending, and in which the present suit was tried, rather than by the sheriff on direct order of sale. It seems that John H. Mitchell is receiver of this land as well as all the other properties and assets of Al and Lloyd Parker, Inc., owners of this land. The validity of that receivership proceeding was not brought into question in this suit, and it is not deemed within the prerogative of this court in this action to make any orders which would restrict or interfere with the administration of the affairs encompassed in that receivership.
Undoubtedly the trial court, having jurisdiction over both the receivership and this proceeding, had the power, exercisable in its discretion, to order judicial sale of the property herein foreclosed upon, notwithstanding it was in the possession of the receiver, under proceedings in another action in the same court. But, the receivership not being questioned in this- action, and therefore presumably valid, we are of the opinion that it was within the discretion of the court to direct that the sale be made by the receiver rather than in a judicial sale under execution. 36 Tex. Jur. p. 205, § 100.
Fernandez, trustee, relies principally upon the case of Houston Ice & Brewing Co. v. Clint (Tex.Civ.App.) 159 S.W. 409, for support of his contention that the trial court should have ordered sale of the land involved by the judicial processes provided by statute in cases of foreclosure. But that case is effectually distinguishable from this by the fact that it was shown in that case that the validity or necessity for the receivership had terminated, and there was nothing left to do but sell the security, which the court ordered done as under execution; whereas, in this case, the condition of the receivership was not shown below, nor was its validity or necessity questioned. We think, under this showing, that it was discretionary- with the court having jurisdiction of both proceedings to determine the question of whether the property foreclosed upon should be sold as under execution, or by the receiver, in satisfaction of the judgment for debt and foreclosure.
Now, had it been shown in this proceeding that the receiver has in- his possession no assets of the owner other than the property here involved, out of which the debt here sued on could be paid—in short, that there was no necessity for continuing the receivership, as in the case cited-—-then, undoubtedly, the judgment creditor was entitled to execution and order of sale, without -reference to the receiver. 36 Tex. Jur. p. 203 and 205, §§ 99 and 100; Scott v. Crawford, 16 Tex.Civ.App. 477, 41 S.W. 697; Cushing v. B. C. Evans Co. (Tex.Civ.App.) 33 S.W. 703. But no such showing was made, wherefore the matter was left to the discretion of the court.
It is equally true, however, that the plea of the receiver that on account of abnormal business conditions, as well as a recent hurricane, the property, if sold now, would not bring a fair and reasonable price, is without any legal merit, and could not properly be considered by the court in determining the time or method of disposing of the property towards satisfying the judgment.
This court must presume that the receiver, an arm of the court below, will proceed in good faith to promptly pay off the judgment rendered in this case or sell the land involved in satisfaction thereof, in accordance with both the letter and spirit of that judgment. If he does not do so, or if the judgment creditors become dissatisfied with his course in the matter, then they may apply to that court for relief, and, if dissatisfied with the rulings of the court thereon, may appeal from such rul*941ings, 36 Tex.Jur. pp. 130, 175, 180, §§ 60, 83, 86.
4.We conclude, as well, that the trial court correctly decreed the order of issuance of executions to satisfy the deficiency, if any remaining, after distribution of the proceeds of the sale of the security.
Summarizing the holdings in the original ■ opinion, as adhered to or revised in this opinion, we conclude that the judgment of the trial court’ should be reformed so as to provide as follows:
1. .That the banking commissioner recover of the makers, indorsers, and guarantors the amount of the Parker-Barreda note No. 4, with principal, interest, and attorney’s fees, in the sum of $56,643.42, the same being one-third of $169,930.26, as found by the trial court, with interest thereon from June 8, 1934 (the date of the judgment below), at the rate of 10 per cent, per an-num until paid, together with foreclosure of the deed of trust lien upon the land in-, volved.
2. That A. H. Fernandez, trustee, recover of the same parties defendant the amount of the Parker-Barreda notes Nos. 3 and 5, with principal, interest, and attorney’s fees, in the sum of $113,286.84; the same being two-thirds of $169,930.26, as found by the trial court, with interest thereon from June 8, 1934, at the rate of 10 per cent, per annum until paid, together with foreclosure' of the deed of trust lien upon the land involved.
3. That said judgment be certified to John H. Mitchell, receiver, for observance, as decreed in the judgment below, except that said receiver shall satisfy the judgment in favor of said banking commissioner and trustee, in the proportions herein adjudged, whether paid from proceeds from the sale of said land or from ■other funds in the hands of said receiver.
4. That, after exhaustion of the security, if a deficiency occur, same shall be made ■out of the makers, indorsers, and guarantors of said notes, as provided in the judgment below.
5. That the banking commissioner take nothing by reason of his suit against A. H. Fernandez, individually.
6. That the costs of this appeal be taxed against the said Fernandez, trustee.
7. That, as so reformed, the judgment will be affirmed.