Powell v. Nicholson

283 S.W. 623, 1926 Tex. App. LEXIS 1128

• Court: Court of Appeals of Texas
• Decided: March 10, 1926
• Docket: No. 3188.
• Status: Published

Opinion

HODGES, J.

The appellee sued the appel lant to recover the sum of $755, with interest and attorney’s fees, due upon a note, and tc foreclose a chattel mortgage on a sawmill outfit. A trial before the court without a jury resulted in a judgment for the amount sued for, together with the foreclosure of the mortgage.

In this appeal the appellant seeks a re versal upon the ground that the court admitted in evidence two original mortgages upon the property, without proof of their execution. Under the provisions of articles 1906 and 3710 of the Revised Statutes of 1911 it was not necessary to prove the execution of those instruments before admitting them in evidence. One mortgage was but a renewal of the other, and the suit was founded upon the mortgages as well as the note, and there was no denial under oath.

Appellant refers to the ease of Betterton et al. v. Echols, 20 S. W. 63, 85 Tex. 212, as holding to the contrary. That was a controversy between a creditor and a claimant. This is a suit between the mortgagee and the mortgagor. The difference between the two controversies justifies the application of a different rule of law.

The judgment is affirmed.