Elgin v. Banks , 1931 Tex. App. LEXIS 376 ( 1931 )

On Motion for Rehearing. Through inadvertence the appeal and brief of appellant N.C. Sawyer were not discussed or specifically disposed of in the original opinion.

Sawyer purchased a parcel of land from the Elgins, who had purchased it from Nagel. In the conveyances of the land from Nagel to the Elgins, and from the latter to Sawyer, the grantees in both instruments assumed to pay said note, as part consideration for the land. The note was described in both conveyances as, simply, a promissory note for the amount stated, with 8 per cent. interest, to mature on October 1, 1930, executed by G. H. Nagel to Martin Nagel, and dated October 1, 1927. This description omitted any mention of the provisions actually embraced in said note for increased or compound interest, or for acceleration of its maturity, or for attorney's fees, nor was any reference made to any instrument of record for a better or more complete description of the note, although the deed of trust given upon said land by G. H. Nagel to Martin Nagel, coincident with the execution of the note and to secure the payment thereof, did contain a complete description of the note, including the additional clauses omitted from the description in the deeds. But this deed of trust was not referred to in the deeds, directly or otherwise. Neither was it mentioned in appellee's petition below, and so was it excluded from the instruments from which it was agreed upon the trial that Sawyer's liability should be determined. No effort was made to recover by reason of said deed of trust, and appellee did not seek or obtain foreclosure of any lien upon the land. It is simply a plain suit to recover the amount of the note, with interest and attorney's fees, upon a declaration accelerating its maturity and rendering it due two and a half years before its maturity date. In this state of the case, it would seem under the authorities that Sawyer could not be bound, over his objections, by those provisions of the note not embraced in the description thereof in the deed of assumption. Dalton v. Rainey,75 Tex. 518, 13 S.W. 34; Standard Paint Wall Paper Co. v. Rowan (Tex.Civ.App.) 158 S.W. 251: Hall v. Read, 28 Tex. Civ. App. 18,66 S.W. 809; Gray v. Fenimore (Tex.Com.App.) 215 S.W. 956.

In this appeal, however, appellant Sawyer seems to seek reversal upon the single contention that the note sued on was a materially different note from the one assumed by him, and therefore there could be no recovery thereon against him for any purpose or amount. This contention is not tenable. The whole record, and particularly the stipulation of the parties upon which the judgment is based, show that the note sued on is in fact the note assumed by appellant.

The only effect that could have been given to the variance between the note in suit and the one assumed would be to limit the recovery to the liability fixed in the note as described in the deed of assumption. But the trial court nor this court may upon its own motion grant to appellant a character or degree of relief not sought by him in either court. Appellant nowhere complains of the judgment against him for attorney's fees, or for compounded interest (if that was in fact included in the judgment), or for a premature institution of the suit against him. He simply contends that there should have been no recovery against him for any amount, which contention must be denied. By his failure to at any time assert it, he has waived whatever right he had in the beginning to object to the recovery of attorney's fees, and to the premature institution of the suit against him.

The order affirming the judgment in all things will be adhered to, and the motions of both appellants will be overruled.