Not unmindful that upon this record we are bound by the findings of fact below made, and are confined to determining whether the facts as found sustain the judgment, if there is evidence supporting the findings, and, without departing from that rule, we at the outset refer, in chronological order, to some facts which are alleged in the pleadings, which are either directly or by necessary implication established by the findings, and as to which there can be no dispute whatever. We do this in order, if possible, to dispel the obscurity resulting from the prolixity of the pleadings, the unnecessary volume and confusion of the record, and the want of accuracy manifested by some of the assignments of error relied upon.
Prior to June, 1891, two partnerships were located in Texas, one, Grigsby Brothers; the other, the Union Mills Lumber Company, sometimes called the Union Lumber Mills Company. The first (Grigsby Brothers) was composed of G. M. D. Grigsby and D. J. Grigsby; the second (Union Mills Lumber Company) of the two Grigsbys, owning four-fifths interest, and T. L. L. Temple, one-fifth. At the same time there was located in Arkansas a firm known as the Southern Pine Lumber Company, composed of T. L. L. Temple and Benjamin Whitaker. Prior to June, 1891, D. J. and G. M. D. Grigsby became the recorded owners of the following real estate situated in the city of Oklahoma and in the town of Guthrie, Oklahoma territory, viz.: 1st, an undivided four-fifths interest in five lots in block 60, Oklahoma City; 2d, an undivided four-fifths interest in one lot in block 54 of the town of Guthrie proper; an undivided four-fifths interest in and to an undivided one-half interest in block 43 in the town of Guthrie, and a like undivided four-fifths interest in a one-half interest in two lots in block 43 and one lot in block 51, East Guthrie. A like one-fifth undivided interest in the same lots was simultaneously acquired and recorded in the name of T. L. L. Temple. In June, 1891, the National Bank of Jefferson, in Jefferson, Texas, discounted for Grigsby Brothers a note of that firm for $5,000. The note was dated June 11, 1891; matured in ninety days; bore 12 per cent interest from maturity, and stipulated for a 10 per cent attorney's fee in case of suit to collect. This note was secured by a deed of trust embracing the undivided interest of the Grigsbys in the lots above referred to. E. F. Pentecost, the trustee named in the deed, was empowered, in case of default in payment of the debt of the bank, to sell and apply the proceeds to the payment of the note. This deed was duly recorded in Oklahoma territory. In August, 1891, the American Exchange Bank of St. Louis discounted for T. L. L. Temple a note of the Union Mills Lumber Company, drawn for it by D. J. Grigsby. This note was for $884.90, payable in ninety days; bore 12 per cent interest from maturity, and contained a 10 per cent attorney's fee clause. It was indorsed by T. L. L. Temple individually and by the Southern Pine Lumber Company. This note, not having been paid at maturity, the American Exchange Bank of St. Louis, in November, 1891, sued on the note in a state court at Dallas, Texas. The defendants were the two Grigsbys and Temple as partners in the Union Mills Lumber Company, the maker of the note, Temple and Whitaker as partners in the Southern Pine Lumber Company, the indorsers, and Temple individually, because of his personal indorsement. Judgment was entered against all the defendants, as members of the two firms and individually, for $1,022.38, the principal, interest, and attorneys' fees. An execution was returned in February, 1892, satisfied 'by collecting the full amount of principal and costs and interest of this execution from T. L. L. Temple.' In September, 1892, a corporation called the Southern Pine Lumber Company was organized under the laws of Arkansas at Texarkana in that state. T. L. L. Temple was one of the incorporators and subscribed to 997 out of a total of 1,000 shares, and he became the president of the company. In October, 1893, at Texarkana, Texas, a corporation called the Southern Pine Lumber Company was organized under the laws of Texas. Temple was an incorporator and became its president. In November, 1894, in the district court for Logan county, Oklahoma territory, a suit was commenced in the name of the American Exchange Bank of St. Louis against T. L. L. Temple and Benjamin Whitaker as partners in the Southern Pine Lumber Company; the Southern Pine Lumber Company, the Arkansas corporation, D. J. and G. M. D. Grigsby and T. L. L. Temple, as partners of the Union Mills Lumber Company.