On the former appeal of this case, as reported in 194 S.W. 406, it was styled Nunn v. Smith. After the introduction of the evidence upon this trial the court directed a verdict in favor of Nunn.
Under numerous assignments of error the appellants challenge the court's action, and appellee has filed objections to the consideration of many of these assignments. This court has heretofore held, and notwithstanding the fact that several other Courts of Civil Appeals are not in accord with us upon the proposition, we still hold that the action of the trial court, in directing a verdict, presents a question of fundamental error, which it is our duty to consider without any assignments. In accordance with this holding we have carefully reviewed the record, and have concluded that the trial court was justified in giving the peremptory instruction. On the former appeal we held that by transfer of the note and mortgage, under the conditions shown, appellants impliedly consented to the risk involved in a failure to forthwith record the mortgage. We may infer from the facts in the record before us that the mortgage was in the hands of appellants for about ten days before it was delivered to appellee Nunn. On the former appeal Judge Boyce, speaking for the court, said:
"If appellant Nunn assumed the duty of recording the mortgage, of course his failure to do so would operate as a release; but this assumption of duty cannot be inferred from the mere acceptance of the note and unrecorded chattel mortgage, and the duty to record the mortgage would not exist, unless such facts were shown as would make it inequitable for him to deny that such was his duty," etc.
We find no facts in this record which would estop him from denying that it was his duty to register the mortgage. The mortgage had not been recorded when appellants indorsed the note. If in their opinion it was necessary to record it in order that they might be protected, they should have filed it with the county clerk, or have required appellee, by some express agreement, to subsequently do so. No additional facts were shown in this trial bearing upon that issue, and under the former opinion of this court there was nothing to require the trial judge to submit it.
Another question presented by appellants' brief which we consider is the criticism of that portion of the former opinion affirming the judgment in so far as it decrees that Louis Hanson purchased the mortgaged property without notice. The issue was clearly drawn in the first trial; there was an express finding of the jury upon that issue against appellants' contention, and upon the former appeal no complaint was made by appellants of such finding. As provided by rule 62a (149 S.W., p. x), "If it appears to the court that the error affects a part only of the matter in controversy, and the issues are severable, the judgment shall only be reversed, and a new trial ordered as to that part affected by such error," the judgment of the trial court rendered on the first appeal having released Hanson from all liability, did not present fundamental error, and under the rule quoted and the well-understood practice of this court, no other course was left for us than the affirmance of that part of the judgment. The trial court, therefore, would not have been warranted in submitting the issue of *Page 1125 Hanson's liability to the jury upon the second trial.
Upon the issue of estoppel, in our opinion there is nothing in the letter of August 28, 1914, written by appellee's attorneys, which could have been taken by appellants as either a direction or license not to resort to all means to protect themselves from liability upon the note, and upon the trial no effort was made by appellants to prove what, if anything, they would have done but for the letter; in fact, the record is replete with testimony showing that appellants recognized their liability, notwithstanding the fact that the mortgage had not been duly recorded and the mortgaged property had been disposed of by Smith. While appellant testified on direct examination that the note and chattel mortgage in question were executed and accepted by them in accordance with their prior agreement, made with appellee to take such note and mortgage as part of the consideration for the transfer of the land, they did not testify that appellee agreed to record the mortgage or assume any responsibility by reason of the fact that it had not been recorded. Even though the court had submitted to the jury the issue as to whether or not the note and mortgage iad been arranged to the satisfaction of appellee and taken and accepted by him as part of the consideration, and although a finding favorable to appellants upon such issue had been returned by the jury, still appellants would not be relieved as indorsers under the record before us.
Finding no reversible error, the judgment is affirmed.
HUFF, C.J., not sitting; being absent in Austin on committee of judges, passing on writs of error for Supreme Court.