DocketNumber: No. 3147.
Citation Numbers: 280 S.W. 840
Judges: WILLSON, C.J. (after stating the facts as above).
Filed Date: 12/17/1925
Status: Precedential
Modified Date: 1/13/2023
The contention of appellant, Beard, is that the judgment is erroneous so far as it directs the application of the proceeds of the sale ordered to the payment of all the notes alike, instead of to the payment in full of the three notes held by him before any part of such proceeds is applied to the payment of the note held by the appellee bank. The contention is predicated on the fact that the bank, having a right to do so (Traders' Nat. Bank v. Price [Tex.Com.App.] 228 S.W. 160), failed to have the transfer to it of the note it held recorded, and the fact that appellant, having a right to do so (Commission Co. v. Core, 47 Tex. Civ. App. *Page 841
216,
"He who neglects the performance of a duty enjoined, or the exercise of a privilege granted for his security, must suffer the loss, rather than one who was not in position to secure that protection."
And see Trust Co. v. Roberts (Tex.Civ.App.)
Appellant's contention is sustained, and the judgment of the trial court will be so reformed as to direct that the proceeds of the sale to be made of the land shall be applied to the payment in full of the amount due on the three notes owned by him (appellant) before any of same is applied to the payment of the note owned by the bank; and said judgment as so reformed will be affirmed.