When judgment was rendered the note had matured, was due and unpaid, and attorney's fees having been prayed for, the court properly rendered judgment for the total amount of principal, interest and attorney's fees. Harfst v. State Bank, 56 Texas Civ. App. 31[ 56 Tex. Civ. App. 31], 119 S.W. 694. 4 It is not necessary to plead or prove the attachment proceedings in order to be entitled to a foreclosure of the attachment lien; the court takes judicial notice of the proceedings as part of the record in the case (5 Tex. Jur., p. 247, Sec. 83), and the judgment of foreclosure was proper, plaintiff having recovered in the suit.
positive, because Mrs. Bettie H. Payne testified that she did not know of the fraud perpetrated upon her husband in inducing him to sign the notes sued upon at the time she executed the extension agreement in renewal of the notes executed by H. B. Payne. 8 C.J. 751; Wheelock v. Berkeley, 138 Ill. 153, 27 N.E. 942, 8 C.J. 444; Tyler v. Anderson, 106 Ind. 185, 6 N.E. 600; Delong v. Barnes, 45 Ohio St. 237, 12 N.E. 735; First Nat. Bank of Dalton v. Black, 108 Ga. 538, 34 S.E. 143; Hunt v. Rumsey, 83 Mich. 136, 47 N.W. 105, 9 L.R.A. 674; Earle v. Robinson, 157 N.Y. 683, 51 N.E. 1090; Adams v. Ashman, 203 Pa. 536, 53 A. 375; Strickland v. Graybill, 97 Va. 602, 34 S.E. 475; Gilpin v. Machine Co., 25 Okla. 408, 108 P. 382, 9 L.R.A. (N.S.) 477; 3 R.C.L. 1107; Hutchison v. Stanley, 88 Kan. 739, 129 P. 1180; Johnson v. Grayson, 230 Mo. 380, 130 S.W. 673; Gilpin v. Netograph Machine Co., 25 Okla. 408, 108 P. 382, 29 L.R.A. (N.S.) 477; Casner v. Hoskins, 64 Or. 254, 128 P. 841, 130 P. 55; Harfst v. State Bank of El Campo, 56 Tex.Civ.App. 31, 119 S.W. 694; Comings v. Leedy, 114 Mo. 454, 21 S.W. 804; Didlake v. Robb, Fed. Cas. No. 3899; Kelly's Heirs v. Allen, 34 Ala. 663; Murphy v. Gay, 37 Mo. 535; Armstrong v. Walker, 200 Ala. 364, 76 So. 280; Scandinavian-American Bank v. Westby, 41 N.D. 276, 172 N.W. 665. The real consideration of a renewal note is the consideration of the first, and such failure of consideration in the first may be pleaded against the recovery of the second.
Anderson) became the owner of the antecedent debt due by the furniture company, evidenced by the original note, whether by gift or purchase, it was a consideration to support a contract, and when the renewals were given and accepted upon condition that the notes be indorsed by Ladd et al., with or without their knowledge of such requirement, they became indorsers for value regardless of their previous liability. McNeill v. Simpson, 39 S.W.2d 835; Armstrong, Cator Co. v. Snyder, 15 Texas Civ. App. 394[ 15 Tex. Civ. App. 394], 39 S.W. 379; Harfst v. State Bank, 119 S.W. 694. Robt. M. Rowland and Leroy A. Van Zandt Smith, all of Fort Worth, for defendants in error.
In some cases antedating an instrument plainly constitutes a violation of the obvious intent of the principal and exceeds the authority conferred, but the facts of this case, as shown by the evidence introduced, do not make out such a case. Appellees cite the following cases in support of the action of the trial court, viz.: Jones v. Primm, 6 Tex. 170; Whittle v. Bank, 7 Tex. Civ. App. 616, 26 S.W. 1011; Riley v. Reifert, 32 S.W. 185; Garner v. McGowen, 27 Tex. 490; Harfst v. Bank, 56 Tex. Civ. App. 31, 119 S.W. 694; Garlitz v. Bank, 152 S.W. 1151. In each of these cases the maker's name was signed by him or by his authority, and the questions arose upon unauthorized filling in of blanks or fraud used in procuring him to sign the instrument.
ud in procuring the execution of an instrument may, of course, be shown between the original parties, or parties with notice, it is a rule adopted for the protection of negotiable instruments in general that the maker, indorser, or acceptor of a negotiable instrument procured through fraud may be held liable to a purchaser for value before maturity without notice; and he will not be allowed to set up the defense of fraud to relieve himself of such liability" — citing, in support of this contention, Watson v. Flanagan, 14 Tex. 354; Blum v. Loggins, 53 Tex. 121; New v. Walker, 108 Ind. 365, 9 N.E. 386, 58 Am.Rep. 40; Texas Banking Ins. Co. v. Turnley, 61 Tex. 365; Thompson v. Samuels (Sup.) 14 S.W. 143; Worsham v. State, 56 Tex.Crim. 253, 120 S.W. 439, 18 Ann.Cas. 134; State Bank v. Holland, 103 Tex. 266, 126 S.W. 564; Barnes v. McCarthy, 132 S.W. 85; Bank v. Cruger, 91 Tex. 446, 44 S.W. 278; Id., 44 S.W. 1057; Allen v. Garrison, 92 Tex. 546, 50 S.W. 335; Riley v. Reifert, 32 S.W. 185; Harfst v. State Bank, 56 Tex. Civ. App. 31, 119 S.W. 694. The last two cases seem to be in point and sustain his contention.