Bell v. Fed. Land Bank of Houston , 118 S.W.2d 1007 ( 1938 )

The 11th District Court of Harris County overruled the separate pleas of privilege of Emma Mae Bell, individually, and as administratrix of the estate of her deceased husband, S. H. Bell, to be sued in this cause in Harrison County, as the one of her residence, rather than in Harris County, where the venue thereof was laid.

She appeals from the order only in so far as it affected her individually.

The judgment of the learned trial court in the matter will be affirmed, mainly upon these considerations:

The suit was brought by the appellee in Harris County against the appellant as such administratrix upon a note secured by a deed of trust upon Harris County lands given it by such deceased husband, the obligations of both instruments being expressly performable in that county, to which the appellant in her individual capacity, and a number of others — inclusive of the Humble Pipe Line Company, a resident of that county — were made parties; its objectives were a judgment against the appellant in her stated representative capacity, as well as a foreclosure against her in both capacities, along with all the other parties, under averments that she individually and they were setting up some claim to the property inferior to its alleged lien thereon.

The proof upon the hearing showed that the note and deed of trust sued upon had been so given, that the appellee was the owner and holder of both documents, that both were made expressly performable by their terms in Harris County, that the land was located there, that appellant was claiming a homestead-interest therein as being vested in herself individually and entitling her to be sued thereon in the county of her residence as against appellee's foreclosure cause-of-action, and that the appellee had a cause-of-action for such foreclosure against the Humble Pipe Line Company, which in fact resided in Harris County.

The presence of these averments and this proof, in the opinion of this court, as against what is the gist of appellant's contention — that the appellee had the burden below, under subdivision 4 of R.S. Article 1995, of showing that appellant individually was either a proper or necessary party to the appellee's foreclosure proceeding — brought the cause squarely under these very recent holdings to the contrary: Sampson v. Gandy, Tex. Civ. App.116 S.W.2d 767; Stockyards Nat. Bank v. Maples, 127 Tex. 633,95 S.W.2d 1300; Monte Oil Co. v. McFall, Tex. Civ. App. 114 S.W.2d 596.

Without further discussion the judgment will be affirmed.

Affirmed.

PLEASANTS, C. J., absent. On Motion for Rehearing.