Williamson v. Diltz ( 1937 )

FUNDERBURK, Justice.

By deed dated September 26, 1929, Mrs. S. M. Compton, joined by her husband, T. F. Compton, purported to convey certain lots in Merkel, Tex., to their daughter, Mrs. Tommie Lou Diltz, for a recited consideration of $2,500, which was not paid. The instrument recited that the property was to be the separate property of the grantee. Of date January 30, 1930, P. A. Diltz, and Mrs. Tommie Lou Diltz executed a note for $750, due on or before January 30, 1931, payable to W. L. Diltz, Sr., and at the same time executed a deed of trust on said lots to secure payment of said note. In consideration of the note, W. L. Diltz, Sr., paid $750 to the account of Mrs. Tommie Lou Diltz in a Merkel bank, and the money was used exclusively by Mr. and Mrs. Compton, the grantors in said deéd. P. A. Diltz, the husband' of Tommie Lou Diltz, took no part in the negotiations, but merely signed the note, and signed and acknowledged the deed of trust, upon the request of the wife, or the attorney drawing the papers, to do so.

In this suit by Mrs. J. M. Williamson, a feme sole, as owner and holder of the $750 note to recover thereon and foreclose the deed of trust lien, the court, in response to a proper joinder of issues, held that the conveyance of the land by the Comptons, to Mrs.- Diltz, and the execution of the note and deed of trust by P. A. Diltz and Tommie Lou Diltz was a simulated transaction by which W. L. Diltz made a loan to T. F. Compton and undertook to fix a lien on the lots in question which constituted the homestead of the Comptons, and was therefore void.

Upon the trial of the case the court gave judgment denying plaintiff any recovery whatever, and the correctness of the judgment is unchallenged, save in that it failed to award plaintiff a recovery on the note against P. A. Diltz.

The note was simply signed “Tommie Lou Diltz” and “P. A. Diltz.” The deed of trust began “Know All Men By These Presents, That Tommie Lou Diltz joined [by] lier husband P. A. Diltz, of the county of Taylor” etc. There was nothing in the note or deed of trust to indicate that P. A. Diltz signed the note for any other purpose than to evidence his obligation to pay the amount therein specified according to the terms stated.

Neither the pleadings nor the evidence showed any defense so far as P. A. Diltz was concerned against the claim of his liability on the note. Under the circumstances, if effect should be given to any testimony tending to show that he only signed the note in a pro forma capacity and without intent to become liable thereon, a clear case would be presented of allowing parol testimony to vary the terms of a written contract. A correct statement of the law deduced-by Texas Jurisprudence from the authorities is that, “if the instrument, on its face, is clearly that of the person signing it, parol evidence will not be received to exempt him from liability, on the ground that he meant to bind only his principal. To permit evidence to be given that the party who appears on the face of the instrument to be personally a contracting party is not a contracting party would be to allow parol evidence to contradict the written agreement, and this is not permissible.” 2 Tex.Jur. p. 587, 588, § 176; Sanger v. Warren, 91 Tex. 472, 44 S.W. 477, 66 Am.St.Rep. 913. This question has heretofore been passed upon by this court in Stahlman v. McManus, 93 S.W.(2d) 470, and Womack v. First Nat. Bank (Tex.Civ.App.) 81 S.W.(2d) 99. To the same effect, see Thomason v. Flippen-Prather Realty Co. (Tex.Civ.App.) 93 S.W.(2d) 799; Tygart v. Hulshizer (Tex.Civ.App.) 234 S.W. 1116; Turner v. Montgomery (Tex.Civ.App.) 67 S.W.(2d) 637; Gleghorn v. Russell (Tex.Civ.App.) 62 S.W.(2d) 285.

It is therefore our conclusion that the judgment of the court below should be affirmed in all respects, except as indicated, but, in so far as it refused plaintiff a recovery upon the note against P. A. Diltz, should be reversed and here rendered that said plaintiff have and recover of said defendant the amount of principal, interest, and attorney’s fees due upon the note as prayed for, all of which is accordingly so ordered.