Farmers' & Merchants' State Bank & Trust Co. v. Cole

On Motion for Rehearing.

Error is assigned to our statement in the opinion in which we say:

“No evidence is found in the record to show that the 480 acres of land was worth more or less than $4,800, the value expressed in the deed.”

The statement does not accurately express what we meant to say. The deed expressed a consideration of $4,800. We meant to say that there is evidence found in the record to show that the 480 acres óf land has a valuation of $4,800, as expressed in the deed. On the value of the 480 acres t of land the evidence of the witnesses ranges from $3,280 to $5,760.

Appellant further complains of error in overruling its assignment of error numbered 26 in the record. The Continental State Bank alleged that it was the legal owner and holder of the notes; that before maturity of any of said notes, and without notice of any of the matters or things charged in plaintiff’s petition, the F. & M. Bank transferred in blank to it the said notes and the vendor’s lien securing same, and thereafter, and ever since, and now, it is the legal owner and holder of the notes, and prayed for a foreclosure of the vendor’s lien expressed in the notes. On the trial on the issue of its ownership of -the notes in question appellant Continental Bank offered in evidence a certified copy of the proceedings had in a suit in the district court of Tarrant county filed by it against the F. & M. Bank and the sureties on the bond in the contract, a memorandum of which contract is set out in the opinion. The copy of the proceedings had embraced the petition alleging that the Continental Bank assumed the indebtedness of the F. & M. Bank as set forth in the contract, the F. & M. Bank’s acknowledgment of the indebtedness of the amounts so assumed; that the conveyance of the assets of the F. & M. Bank to the Continental Bank was made for the purpose of securing the Continental Bank in the assumption of said indebtedness; that the Continental Bank took the assets, paid the indebtedness as agreed, and otherwise performed the contract, setting out its provisions; that after the performance of the terms of the contract a balance was due the Continental Bank, stating the amount, for which it prayed judgment and that it have its lien and a foreclosure upon all of the assets set out in the exhibits, including the notes in question. The copies of the proceedings in the suit, in addition to the petition, embraced the judgment rendered for the amount found to be due, establishing a lien and decreeing its foreclosure upon the assets, including the notes here involved, an order of sale, the levy and sale of the notes, the bill of sale thereto executed by the sheriff. The court excluded the above proceeding on objection of appellees to the effect that appellees were not parties to that suit; absence of the filing date of the petition; absence of relevancy and bearing upon the issues in the case at bar of the proceedings as to appellees; that the court and bond sued on in the case provides that the Continental Bank should turn back to the F. & M. Bank all of the uncollected assets which, it had received, taking as its guaranty the bond under that contract; that the Continental Bank did not turn back nor tender back the assets, including the notes involved; that, not having turned back the notes, whatever may have been the allegations in the petition or the decree thereunder would be immaterial and incompetent for any purpose as to appel-lees.

The point insisted on by appellant is that it had a lien and right of foreclosure on all of the assets of the F. & M. Bank by reason of its contract and purchase at the foreclosure sale. The question is presented: Was it error to exclude the copies of the proceedings on the objections made? While the question presented is not free from difficulties, we have concluded that appellant, under the foreclosure proceedings, was not an innocent purchaser of the notes for value without notice, and that the exclusion of the evidence was not reversible error. With the correction made as above, the motion is overruled.