Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 246
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246 TAYLOR v. HUDGINS. [Term of
Opinion of the Court.
There was no error in overruling defendant's exceptions to
plaintiff's petition and amendment; they both set forth a sufficient
cause of action. That the court erred as set forth in
bill of exceptions No. 1, in permitting the note to be read in
evidence notwithstanding defendant's plea of non est factum,
we are not inclined to admit; the plea studiously avoided any
denial of defendant's having executed and delivered his power
of attorney to Finch to mortgage, create a lien, and hypothecate
all or any of his lands in Texas, and to execute, deliver,
and acknowledge all such mortgages, liens, or deeds of hypothecation
as might be necessary. The answer of defendant made
no assertion and even gave no intimation that he had not intended
to authorize his agent to receive or that he had not received
the amount of money claimed by plaintiff. The case
-being tried before the court, it could not have escaped the at-tention
of the presiding judge, that the plaintiff could have
testified in his own behalf and would have done so had he any
facts to state that would have relieved or tended to relieve him
from the liability set forth in plaintiff's petition. The note
and mortgage were executed simultaneously-they were parts
of one and the same transaction, having exclusive reference to
a sum of money obtained, of which the note was in part the
evidence of indebtedness, and the trust or mortgage deed
alike the evidence and security for. The two writings, executed
at the same time, between the same parties, and having
reference to the same subject-matter, must be deemed one instrument,
and as forming but parts of the same contract. (See
Dunlap v. Wright, 11 Texas, 603, and authorities there
The note and mortgage constituted but one cause of action,
and the deed with its covenants would alone have enabled the
plaintiff to maintain his suit and obtain judgment for his debt
with a degree of foreclosure on the land mortgaged. (Duty v.
Graham, 12 Texas, 436.) The presiding judge, in permitting
the note to be read in evidence, it is clear, considered that the
power of attorney from defendant to Finch, with all the at
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/254/: accessed August 16, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .