. Error from District Court, Smith County; R. M. Smith, Judge. Suit by L. R. Prince against W. B. Colvin and others. From a judgment for plaintiff against only a part of the defendants, lie brings error. W. E. Oolvin executed to S. B. Ray and J. P. Seale a series of three notes in part payment of 60.8 acres of land, the vendor’s lien being retained in the conveyance to secure the payment of the notes.
Cited by 1 later decisions — most recently November 1933
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[1, 2]
The indorsement on the first note has the legal effect to render the defendants in error Seale and Ray each liable as indorsers. Behrens v. Kirkgard, 143 S. W. 698. But as the statute (article 579, Vernon’s Sayles’ St.) was not complied with by the plaintiff, the court correctly ruled, it is thought, that such indorsers were discharged. Eor the plaintiff in his petition alleged and the proof shows that he had a lien on 60.8 acres of land, given by the maker to secure the notej sued on; and there was no allegation nor proof that the land was of no value as se-¡ curity for the debt. And in these facts it may not be said that the maker of the note was insolvent within the meaning of the statute (article 1843, Vernon’s Sayles’ St.) so as to excuse or make unnecessary, in order to sue and hold only the indorsers, the bringing of the suit by the plaintiff at the first or second term of court after maturity of the note. Smith v. Ojerholm, 93 Tex. 35, 53 S. W. 341; Id.,51 S. W. 37, Id.,18 Tex. Civ. App. 1ll, 44 S. W. 41. And merely a general allegation, not specially denied in the answer, of insolvency of the maker of the note, would not prevail over the specific and affirmatively alleged and proven fact of a lien on 60.8 acres of land not apparently of less value than the note. For, as said by the Supreme Court in the Smith Case, supra:
“Hence we think it cannot be said that a principal is insolvent within the meaning of that statute when any part of the debt can be made by execution against him. … It cannot be said that a debtor is insolvent within the meaning of our law … when he holds property against which the creditor may enforce a lien for the payment of the debt.”
