Powell v. Tomlinson

Anderson, J., delivered the opinion of the court. Appellant admits that the conclusions of law announced by the court in its opinion are sound, but insists that the facts to which they were applied are not in the record. [659] In determining the correctness of a judgment of a trial court, all facts necessary to support such judgment either proven directly or reasonably inferable from the proven facts are to be taken as true. Applying that principle here, it appears that appellant in the early part of 1921 took from his tenant, Wesley Leseure, and his Avife, a deed of trust on stock either OAvned by one or the other or both, as Avell as on the crops to be raised by them on appellant’s farm during that year, to secure supplies to be advanced them by appellant Avith Avliich to make such crops, and also to secure the balance" due appellant by his said tenant, Wesley Leseure, for the preAdous year, the due date of all which indebtedness Avas some time in the fall of 1921. These facts are fairly deducidle from appellant’s OAvn testimony Avhile on the Avitness stand in his own behalf. The questions propounded to him on this proposition and his answers thereto are in the following language: “Q. You have a deed of trust on Wesley’s crop for this year, have you not? (No ansAver.) Q. You have a deed of trust on Wesley Leseure’s crpp and some stock? A. Yes, sir. Q. And that deed of trust recites for supplies and money furnished? A. Yes, sir; I think it is for this year (1921). Q. I Avill ask you this, This is an account that "Wesley Leseure OAves you? (referring to balance due for 1920). A. "Wes, Mary, and the Avhole thing.” It is true that in other parts of appellant’s testimony it appears uncertain Avliether "Wesley Leseure, the tenant, joined in the last deed of trust or not, but the trial court had the right to take appellant’s .evidence most strongly against him. And, furthermore, at the time the second deed of trust Avas taken both Wesley Leseure and his Avife Avere tenants on appellant’s place for the year 1921 and were being furnished Avith supplies by appellant Avilh Avliich to make a crop on his farm. It certainly would not be an unreasonable inference from the proven facts that the second deed of trust, although not joined in by Wesley Leseure, Avas given bv his Avife with his knoAAdedge and consent and for the benefit of both, and that they both [660] agreed with appellant that said balance for 1920, as well as the supply account for 1921, should be due and payable at the usual time in the fall of 1921. We cannot give our assent to the proposition that a landlord so situated as appellant ivas here will be permitted to hold on to the security he has and at the same time pursue his subtenant, who is a mere surety for the tenant or a purchaser from the subtenant, and therefore entitled to the rights of the latter. Suggestion of error overruled.