der the circumstances surrounding this one. [ation purchased it and collateral note from Perhaps we should not discuss the facts, but payee, held, note was discharged so that right, we think that issue is raised by the record, if any, which surety or payee had thereafter and the court should have submitted that is- against makers, would be on an implied promise sue. It is insisted that there is no allega- to pay, although surety on the day that he purchased notes obtained a loan from payee and tion of recrimination in appellant's answer. delivered notes to it as security. "The rules of pleading which apply in other 2. PLEADING →252(1) — AMENDMENT-CONcases do not apply to a defendant in a divorce case in this state, and, although he may have no answer at all, it is the duty of the court to hear any testimony which would show that the plaintiff is not entitled to a divorce. Bostwick v. Bostwick, 73 Tex. 182, 11 S. W. 178." Hartman v. Hartman, 190 S. W. 846.

[7] As to the character of misconduct which will raise the issue of recrimination, we believe the rule is correctly stated in the following:

"In order to defeat the right to a divorce, while it [recrimination] need not be of equal degree with that of the defendant, it must be of the same general character, and such as is reasonably calculated to have provoked the misconduct of the defendant." Bohan v. Bohan, 56 S. W. 959, and authorities cited.

With regard to appellant's right to exercise reasonable control of the household affairs, and to correct the children, the appel

lant, by requested charge No. 5, requested the submission of that issue, and we regard the application of the law to the facts as there sought to be applied substantially correct. It is true the court had given special charge No. 1, which in effect is simply an abstract enunciation of appellant's right in the home of appellee, yet it did not attempt to apply the law to the facts, while the requested charge No. 5 does substantially do so.

[8] In reversing this case, we desire to say that we regard the charge of the court as being very general, announcing simply abstract propositions of law. Inasmuch as the court sought to leave to the jury, not only the finding of the facts, but also the question whether in law they were sufficient to render the further relation of husband and wife insupportable, we believe he should have carefully applied the law to the facts, so that the jury could have determined the rights of the parties, and whether the acts

were such in their nature that the marital relation should have been sundered.

We believe the judgment should be reversed; and it is accordingly so ordered.

TRADICTORY ALLEGATIONS.

Allegations of trial amendment contradictory of and repugnant to distinctly alleged fact in amended petition of which trial amendment was a part is ineffectual.

3. COURTS 121(1)-DISTRICT COURT-Juris

DICTION-AMOUNT.

Where plaintiff surety had lost his interest in note sued on by its payment, and amount of interest alleged to have been paid by him to secure its extension was less than $500, district court had no jurisdiction to render judgment for him.

Error from District Court, Dallas County; W. F. Whitehurst, Judge.

Suit by the Security National Bank and another against W. D. Kynerd and others. Judgment for plaintiffs, motion of defendant named for new trial overruled, and he brings

error. Reversed and remanded.

Etheridge, McCormick & Bromberg, of Dallas, for plaintiff in error.

Leake & Henry, Cecil L. Simpson, and Monta R. Ferguson, all of Dallas, for defendants in error.

TALBOT, J. The Security National Bank of Dallas, Tex., a corporation created under the laws of the United States, and H. W. Ferguson, as plaintiffs, instituted this suit against W. D. Kynerd, the plaintiff in error, and others, recover on a note of $12,500, bearing interest at the rate of 10 per cent. per annum, and providing for the payment of 10 per cent. of the principal and interest of said note as attorney's fees if the same was placed in the hands of an attorney for collection. The plaintiffs also sought a foreclosure on a certain note for $16,000 charged to have been pledged as collateral security for the payment of the note sued on. plaintiff H. W. Ferguson separately prayed judgment for $436.90, on account of alleged payments of matured interest on the notes mentioned above.

The

Plaintiffs alleged in their second amended petition, filed January 11, 1917, in substance, that on the 3d day of December, 1915, deKYNERD V. SECURITY NAT. BANK et al. fendants J. P. Smith and W. D. Kynerd

(No. 8005.)

(Court of Civil Appeals of Texas.

Nov. 2, 1918. Rehearing Denied

Dec. 14, 1918.)

Dallas.

executed and delivered their certain promissory note for the principal sum of $12,500, payable to the order of plaintiff Security National Bank 60 days after its date; that said note bore interest from maturity at 1. PRINCIPAL AND SURETY the rate of 10 per cent. per annum until CHARGE OF NOTE-PAYMENT BY SURETY. Where, when note became due, surety paid, and provided for 10 per cent. additionthereon for a valuable and adequate consider- al on the principal and interest unpaid, for

182 DIS

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

attorney's fees, if said note was placed in, plaintiff H. W. Ferguson is now the owner the hands of an attorney for collection; that of said notes and of said collateral note said note was payable at the office of the hypothecated to secure payment of the said Security National Bank and indorsed on the principal note. That on the same day, to back thereof by plaintiff H. W. Ferguson; wit, the 17th day of June, 1916, plaintiff H. that said note was secured by a note for W. Ferguson attached and delivered all of $16,000 pledged as collateral security exe- said notes and collateral to plaintiff Secuted by J. J. Marshall on March 18, 1915, curity National Bank, to secure a loan obpayable to the order of J. P. Smith, which tained by him on said day from said bank, collateral note was, in turn, secured by a and that plaintiff Security National Bank vendor's lien against a tract of 90.4 acres is thereby the present legal holder of said of land, a part of the Thomas Lagow league notes and collateral, which are held by the in Dallas county; that on or about February said Security National Bank of Dallas as 15, 1916, the said $12,500 note became due pledges to secure the indebtedness of the and payable, and, not being paid, was by said Ferguson, which indebtedness is evithe consent of plaintiff Security National denced by the note of H. W. Ferguson, of Bank renewed and extended by the defend- date September 15, 1916, payable 90 days ants J. P. Smith and W. D. Kynerd execut- after date to the order of the Security Naing their certain note for $12,500 in renewal tional Bank of Dallas, in the principal sum thereof, indorsed by the plaintiff H. W. Fer- of $12,599 with interest at the rate of 8 guson, payable to plaintiff Security National per cent. per annum from date until paid, Bank four months after its date, bearing and the usual provision for 10 per cent. atthe same rate of interest and providing for torney's fees, if placed in the hands of an attorney's fees as did the original $12,500 attorney for collection; said note payable note, and was likewise secured by the said at the office of the Security National Bank $16,000 vendor's lien note; that the plain- in Dallas, Tex. It is further alleged that tiff H. W. Ferguson, in indorsing said orig- the notes executed by the defendants are inal and renewal notes of $12,500, did so past due and unpaid, and that defendants, with the express and implied understanding though often requested, have failed and rebetween him and the makers of said notes, fused to pay said notes, or any part of them; J. P. Smith and W. D. Kynerd, that he, the that said notes have been placed in the said Ferguson, was not to become responsible hands of attorneys; and that plaintiffs have on said notes jointly and severally with them agreed to pay them the fee provided for in as makers of said notes, but that his lia- said notes, which they say is reasonable. bility was only secondary; that when said There are other allegations relating to atoriginal note became due on or about Feb-tachments sued out by plaintiffs and their ruary 15, 1916, it became necessary, in order to secure an extension and renewal thereof, to pay the interest thereon in advance, and plaintiff Ferguson paid on said interest for the benefit of defendants the sum of $167.50; that a prior and superior lien existed against the aforesaid tract of 90.4 acres of land to the lien securing the said $16,000 vendor's lien collateral note, to secure a note for $13,470.72, executed by the Western Lumber & Creosoting Company, and payable to Four States Life Insurance Company of Texarkana, Ark., which note bore interest from date at 8 per cent. per annum, payable semiannually; that an interest payment thereon fell due on March 13, 1916, and, in order to protect the said collateral note for $16,000, plaintiff Ferguson was compelled to contribute and did pay on said interest for the benefit of defendants the sum of $269.40.

It is further alleged in said amended petition: That on or about June 17, 1916, for a valuable and adequate consideration, the plaintiff H. W. Ferguson purchased from plaintiff Security National Bank the said original and renewal notes of $12,500 so executed by defendants J. P. Smith and W. D. Kynerd, together with the aforesaid $16,000 vendor lien collateral note attached thereto as collateral to secure same. That

levy upon certain described tracts of land, but it is unnecessary for the purposes of this appeal to quote or state those allegations. Plaintiffs in their amended petition prayed that upon trial they recover of defendants "as the respective interests of plaintiffs may appear against said defendants, the principal interest and attorneys' fees provided for in said note; that the lien held by them against said $16,000 vendor lien note, to secure the payment of notes so due by defendants be foreclosed; and that said collateral note be sold," etc.

In addition to the foregoing judgment prayed for by both plaintiffs, the plaintiff H. W. Ferguson prayed that he recover of defendants the said sums of $167.50 and $269.40 paid by him as interest. To plaintiff's said amended petition the defendant w. D. Kynerd pleaded general and special demurrers, a general denial, and other matters not necessary to state. By trial amendment plaintiffs pleaded: That the note in the principal sum of $12,500 of date on or about February 15, 1916, made by J. P. Smith and W. D. Kynerd, and indorsed on the back thereof by H. W. Ferguson, payable to the order of the Security National Bank, described in the petition of plaintiffs. was never in fact paid or extinguished. That, at the time the said note was indorsed

by the Security National Bank to H. W. of the makers of said note to reimburse the Ferguson without recourse, it was distinctly and expressly understood that the note was to be again reindorsed by the said H. W. Ferguson to said Security National Bank, and that the said note was to be in all respects kept alive and an enforceable demand against the parties to the said note. That the said note in the entire transaction was kept alive, and was intended to be kept alive, for the benefit and protection of the rights of the Security National Bank, the payee, in said note. That the note executed by H. W. Ferguson payable to the order of the Security National Bank of date June 17, 1916, was not intended to extinguish the said note signed by Kynerd and Smith as makers, but both of said notes were kept alive for the full protection of the rights of the Security National Bank, the payee, in each of said notes, and it was never at any time intended that there should be a divestiture of title, or interference with the title of the said Security National Bank in the said note executed by Kynerd and Smith for the full protection of its rights under said original note which was never canceled or surrendered, but always held in the custody of the said Security National Bank for its full protection against the makers and other parties thereto, and such was the distinct and explicit understanding of all the parties to the transaction, and no part of the said transaction would have been had except for the said agreement and understanding as to the whole, which said transaction as a whole was the real and true consideration passing between the parties, and prayed as in their amended petition.

surety; under the third the proposition is that a trial amendment, the allegations whereof are contradictory of and repugnant to the allegations of the petition of which it is made a part, is vulnerable to exception. The counter propositions of the defendants in error are, in substance, first, that according to the allegations of their pleadings the note sued on was not paid and extinguished by the transactions alleged between the bank and Ferguson, but that the holder of said note was entitled to enforce its collection against the makers Smith and Kynerd; that said note was a secured note, the collateral to which could only be realized upon by keeping that note alive for that purpose, and enforcing the same according to its terms, and in this right either Ferguson or the bank would be protected in equity; that, if there had been error in overruling the general demurrer to plaintiff's petition, this was cured by the filing of the trial amendment which amplified the statement of the original cause of action and pleaded fully and specifically the facts in relation to the real transaction between the bank and Ferguson; that, if there had been error in overruling the demurrers to plaintiffs' petition and same had not been cured by plaintiffs' trial amendment, same was rendered harmless by the final disposition of the case which denied any recovery to Ferguson on account of the note of Smith and Kynerd sued on; that the allegations of the trial amendment filed by plaintiffs were not inconsistent with the allegations of plaintiffs' amended petition, and a good cause of action for a recovery on the note sued on was presented by plaintiffs.

In response to plaintiffs' trial amendment, defendant W. D. Kynerd, the plaintiff in [1] We think the propositions asserted by error here, pleaded a general demurrer, and the plaintiff in error are at least substantially specially excepted thereto "because the alle- correct. From the allegations of the petition gations thereof are contradictory of and it appears, as has been seen, that the note repugnant to the allegations of the plaintiffs' for $12,500 sued on was executed by Smith second amended original petition filed here- and Kynerd as makers, indorsed by H. W. in on January 11, 1917." He also pleaded❘ Ferguson, and delivered to the Security Naa general denial, etc. His demurrers were tional Bank, together with a vendor's lien overruled, and a trial resulted in favor of note for $16,000 as collateral security. As the plaintiff Security National Bank against between Smith and Kynerd, Ferguson, as inhim and J. P. Smith for $14,571.12, and indorser, was secondarily liable on said $12,favor of the plaintiff H. W. Ferguson for 500 note and stood in the position of surety. $460.40; no recovery being allowed Ferguson It further appears from the allegations of on the notes sued on. Plaintiff in error's motion for a new trial was overruled, and he now has the case before this court on writ of error.

The first, second, and third assignments of error relate to and complain of the trial court's action in overruling the plaintiff in error's demurrers. The propositions under the first two of these assignments are to the same effect, namely, that the cause of action of the defendants in error Security National Bank and H. W. Ferguson, if any they had, was not on the note on which they sued, but was on an implied contract or promise

the petition that, when said $12,500 note matured, Ferguson as indorser or surety thereon, for a valuable and adequate consideration, purchased it and the $16,000 collateral note from the Security National Bank, and thereby became the owner and holder of said notes. There is no allegation that, at the time or before Ferguson indorsed the $12,500 note and became liable thereon, it was understood and agreed between him and the makers and payee of the note, or either of them, that in the event he paid off and sat-* isfied the note it was to be transferred or assigned to him as the owner thereof with all

000, as subsisting for the purpose of enabling | would run in such case for eight years, inFerguson and the bank, or either of them, stead of four, as prescribed by the statute. to make available such security it would keep The error of the opinion that the surety is it alive for the purpose of furnishing them a subrogated to the debt, says Mr. Story, in cause of action upon the note and upon which his work, on Equity Jurisprudence (section they might sue and recover according to its 499c), which is approved in Faires v. Cockterms, the proposition is not, in our opinion, erell, "seems to have arisen from confoundsound and is not supported by either of the ing the right of the surety on payment of cases cited. We do not understand that the the debt to be substituted for the creditor, Supreme Court holds, or intended to hold, and to have an assignment of any independin Faires v. Cockerell, that if the creditor, in ent collateral securities, with the supposed a contract like the one involved in this suit, right to have the original debt assigned." has a security from the principal obligor, It is also remarked in Faires v. Cockerell the surety paying the note is not confined to that it has been held by our court and others his right of action upon the implied promise that, where one is subrogated to the securiof the principal obligor to reimburse him, but ties held by the creditor, he is not entitled in such case may sue upon the note. It is to recover the rate of interest expressed in clearly deducible, if not obvious, from the the judgment or note which is the evidence of discussion of the court, that they did not the debt; and such holding furnishes additionintend to so hold. In Sublett v. McKinney, al reason for the conclusion that in no event supra, it was held that the surety is entitled, is the surety, who pays his principal's debt, upon payment of the debt of the principal, subrogated to the the debt itself and all the not only to have the full benefit of all the rights of the principal to enforce the note or collateral securities which the creditor has contract evidencing the debt according to taken as an additional pledge for his debt, its terms. but that he is entitled to be substituted for

the creditor as to the very debt itself, and to have it assigned to him; but, as we have hereinbefore stated, that case was expressly overruled by the case of Faires v. Cockerell, and the rule announced in Holliman v. Rogers, supra, adopted and followed.

In Faires v. Cockerell, it is correctly held that the surety can recover from the principal debtor only the amount that he has paid, and therefore, if he has paid only half of the debt, he is only entitled to recover that much, and that he cannot recover that upon the note or contract without other proof, for he must show how much he has paid. Hence it is not true, that he is subrogated in that case to the position of the creditor who recovers upon the contract according to its terms without other proof. In the case referred to, he is not subrogated to all the rights of the payee, but only partially so, and the contract must be read as an obligation to pay onehalf of its face, when the language expresses a promise to pay the whole sum. It is further said that, if the surety makes different payments on the debt, his right of action accrues upon each payment, and therefore the statute of limitation begins to run against the surety paying at the time of each payment; and illustrative of the error or impracticability of the doctrine that the surety is subrogated to all the rights of the payee, and his cause of action is upon the note signed by him as surety, it is pointed out that, if he has made different payments and his cause of action is upon the note, he has upon the same note as many periods of limitation as he has made payments, and that, if the surety makes payment of the whole debt the last day before the note would be barred by limitation, he would have four years from that date to sue upon the note; and it

In the case of McCavick v. McBride, 189 S. W. 795, it was asserted that it appeared from the evidence in that case, without contradiction, that the appellee did not satisfy or extinguish the debt, but, as is alleged in the present case, purchased the note therein sued on from the bank and thereby became in law the owner of the note and entitled to all the rights and remedies against the appellant that the bank had when it acquired the note; but this court under the authority of the Faires Case, held that, by the payment of the original debt and the supposed acquisition of the note thereby as purchaser by the appellee McBride, the note was extinguished and McBride's remedy was upon the implied promise to reimburse him and not upon the note. In the case at bar, the security held by the payors of the note sued on was the $16,000 note delivered to them as collateral, and was a separate transaction complete within itself. Clearly it was not necessary, it occurs to us, from the character of such security, in order for Ferguson to make it available in enforcing the implied promise of Smith and Kynerd to reimburse him for the payment or purchase of the $12,500 note indorsed by him, that said note should be kept alive. When he paid off and discharged as surety the said $12,500 note, equity subrogated him to the $16,000 note as collateral to the implied promise, and it was not essential, in order to do full justice between the parties, that the original debt be treated as subsisting. The fact therefore of the existence of the $16,000 note does not operate to render inapplicable the principle announced in Faires v. Cockerell and McCavick v. MeBride, supra.

[2] Under the authorities we are constrained to hold that the right of action of Ferguson in this case, according to his pleadings,