Wheeler v. Watson

Mr. Justice Gunter delivered the opinion of the court. Samuel W. Watson owned an interest in realty, and together with J. Frederick Watson executed two notes, one payable to Schilling & Co., the other to. Charlotte Tanney, and gave to secure the notes a. trust deed up'on said interest. Later he sold said interest to B. Clark Wheeler in consideration of a mortgage securing a considerable sum of money, on said realty, and the agreement by Wheeler to assume said two notes secured by said trust deed. Wheeler defaulted in the part of the purchase money secured by the mortgage and the same was foreclosed, Samuel W. Watson buying it in at foreclosure, and the certificate of sale issuing to him. After this sale Wheeler had the trustee in the trust deed given to secure the two notes assumed by him advertise the 'property covered thereby for sale thereunder. An injunction suit was instituted by Watson to restrain the sale and to cancel the 'trust deed, he contending that the notes secured by the trust deed, and which Wheeler had assumed, had been paid. The issue of fact in the case was, whether or not the two notes had been paid. There was evidence tending to show that Wheeler had become the owner of the notes in [37] his own right, which would work a satisfaction of them under his agreement to discharge them. There was evidence tending to show that the notes had been purchased in the interest of third parties. The case was tried to the court, and the court found the issues for appellee, plaintiff below. As its finding was on evidence substantially conflicting we are concluded by it. Judgment affirmed. Chief Justice Gabbert and Mr. Justice Maxwell concur.