# Miller v. Guaranty Trust & Banking Co.

> Court of Appeals of Texas · December 12, 1918 · 207 S.W. 642

URL: https://www.frixlaw.com/law-library/cases/3968966

## Case

- **Full name:** MILLER v. GUARANTY TRUST & BANKING CO. Et Al.
- **Court:** Court of Appeals of Texas
- **Decided:** December 12, 1918
- **Citations:** 207 S.W. 642; 1918 Tex. App. LEXIS 1255
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Walthall
- **Judges:** Walthall, Harper
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3968966

## Opinion text

WALTHALL, J.
In view of the voluminous record presented, we will at the outset make a statement of the facts, none of which are disputed, and, as well as we can, in the order in which the record shows them to have occurred:
From the record, it is 'made to appear that on February 12, 1904, Mark Miller and wife, Adelle Miller, owned, as a part of their community estate, lots 1 and 2 in block 2 in Mun-dy Heights addition to the city of El Paso;
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the lots then being unimproved. On said day, Mark Miller and Adelle Miller entered into a written contract with OS. F. Brown, a contractor and builder, for the erection by said Brown, at his own expense, of a cottage on said lots; the said contract being duly acknowledged by the parties, filed for record, and duly recorded on February 16, 1904. The contract duly recited that Brown should have an express mechanic’s, builder’s, and contractor’s lien on the said lots and improvements to secure the contract price of $2,500 for erecting said building, $500 of said amount paid in cash and $2,000 of said amount to be paid to said Brown in four installments of $500 each and evidenced by four promissory notes, each in the sum of $500 and due and payable respectively in one, two, three, and four years after said date, and providing that on failure to pay any one of said notes at maturity, at the option of the holder, all the notes should become due and payable. Brown erected said cottage according to contract, and the said four notes were executed by Miller and wife and delivered to Brown.
Thereafter, Brown indorsed the said four notes in blank and delivered them to Burton-Lingo Company, a building material company, which had theretofore furnished the material and advanced the money to Brown to erect said building. Credits for amounts paid by Miller are indorsed on the back of each note. The unpaid balance of said Brown notes not being paid at maturity, Burton-Lingo Company brought suit thereon in the district court of El Paso county, on the 2d day of February, 1908, against Mark Miller and Adelle Miller to recover the amount due and to foreclose the said mechanic’s, builder’s and contractor’s lien. The file number of that suit is 7388. Two citations- were issued in, said cause, one each to Mark Miller and Adelle Miller. The citation to Mark Miller was duly served. The return on the citation to Adelle Miller showing service and an attorney appearing and answering for her on the trial, the trial court rendered judgment therein.
On special issues submitted by the court in the ease at bar, the jury found: That Adelle Miller was not duly served with citation in the case of Burton-Lingo Company v. Mark Miller and Adelle Miller in cause No. 7388; that she did not file an answer in the case through an attorney authorized to represent her, nor did she appear at the trial in person or by attorney; that she had no notice of the pendency of the suit; that at and prior to the execution and delivery of the Brown contract the property in controversy was the homestead of Mark Miller and his wife, Adelle Miller; that the officers and attorneys of the Guaranty Trust & Banking Company had no notice that, at the trial of the case of Burton-Lingo Company v. Mark Miller and wife, Adelle Miller did not appear in person and was not present in person or represented by an attorney authorized to do so; the Guaranty Trust & Banking Company, acting by and through its authorized agents, agreed, in substance, with Mark Miller that judgment should be entered in the case of Burton-Lingo Company v. Mark Miller and Adelle Miller; that the Guaranty Trust
&
Banking Company should acquire said judgment from the Burton-Lingo Company, have an order of sale issued thereon, should through an agent buy the property at the sale, should cause the said property to be deeded by its agent to Mark Miller for a consideration in excess of the amount of the mechanic’s lien notes on which said judgment was obtained, said consideration to be evidenced by Mark Miller’s promissory notes, secured by a lien on the property in controversy. There being, apparently, a conflict in the next two findings, we quote them:
“Question No. 8. Do you find from a preponderance of the evidence that said agreement was carried out?” To which the jury answered: “No.”
“Question No. 9. Do you find from a preponderance of the evidence that said agreement was made -and carried out without the consent and acquiescence of Mrs. Adelle Miller?” To which the jury answered; “Yes.”
The Burton-Lingo Company suit against Miller and wife, No. 7388, resulted in a judgment in said cause on the 5th day of March, 1910, in favor of Burton-Lbiigo Company against Mark Miller and Adelle Miller for the unpaid balance of the Miller-Brown notes in the sum of $2,350, with interest, costs, and foreclosure of the mechanic’s, contractor’s, and builder’s lien; no personal judgment being rendered against Mrs. Miller. An order of sale of said property under said judgment in cause No. 7388, with bill of costs annexed, of date April 18, 191For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3968966. Public record. Not legal advice.