67 F. 860 (N.D.Tex. 1895), 202, Western Mortg. & Inv. Co. v. Burford

Docket Nº:202.
Citation:67 F. 860
Party Name:WESTERN MORTG. & INV. CO., Limited, v. BURFORD et ux.
Case Date:April 01, 1895
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 860

67 F. 860 (N.D.Tex. 1895)

WESTERN MORTG. & INV. CO., Limited,

v.

BURFORD et ux.

No. 202.

United States Circuit Court, N.D. Texas.

April 1, 1895

Page 861

W. M. Alexander, for complainant.

A. M. Carter, for respondents.

Before McCORMICK, Circuit Judge, and RECTOR, District Judge.

RECTOR, District Judge.

1. On December 10, 1889, the respondents, John W. Burford and his wife, Matilda F. Burford, borrowed $14,000 from the complainant company, and executed their note therefor of the same date, payable to complainant on the 10th day of December, 1892. They also at the same time executed three coupon notes to cover the annual interest on the main sum borrowed, at the rate of 10 per centum per annum. These coupons were in the sum of $1,400 each, and were due, respectively, on December 10, 1890, 1891, and 1892. To secure the money so borrowed, respondents, on December 10, 1889, executed and delivered to complainant, at the time they received said money, a trust deed on 134 acres of the S. C. Inman survey, on 160 acres of the H. H. Edwards survey, and on 111 acres of the A. Vogt survey. The sketch here below shows these surveys, indicated by shaded portions, and also the 304 acres of the S. C. Inman survey, which belonged to Mrs. Matilda Burford by inheritance from her father.

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In this trust deed there is an averment by respondents, both husband and wife, that the land mortgaged is not their homestead, and that 'we have other property which we occupy and claim as such.'

Deed of Trust.

'The State of Texas, County of Tarrant. Know all men by these presents, that we, J. W Burford and wife, Matilda F. Burford, of Fort Worth, in the county of Tarrant and state of Texas, for and in consideration of the sum of five dollars, to us in hand paid by Zeno Carl Ross, of Fort Worth, Tarrant county, in the state of Texas, trustee, the receipt whereof is hereby acknowledged, and in further consideration of the debt and trust hereinafter mentioned, have granted, bargained, sold, and conveyed, and by these presents do grant, bargain, sell, and convey, unto the said Zeno Carl Ross, trustee, and to his successor or substitute in this trust, and to his and their assigns, forever, all and singular the following described property, situated, lying, and being in the county of Tarrant and state of Texas, viz.: Being three certain tracts or parcels of land situate, lying, and being about 3 miles S., 34 degrees W., from Fort Worth, and particularly described as follows: First tract: Being the H. H. Edward survey of 160 acres of land, patented to Jesse Guin, assignee of H. H. Edwards, on August 16th, 1870, by patent No. 238, volume 19, and beginning at the southwest corner of the A. B. Conner 320-acre survey, in the east line of S. C. Inman's survey; thence south, with the Inman survey, 950 varas, to the southeast corner of the said Inman survey; thence east 950 varas, stake in mound; thence north 950 varas, a stake in the south line A. B. Conner's survey; thence west 950 varas, to the place of beginning. Second tract: Being the Adam Vogt survey of 111 acres of land, patented to J. Hays, E. J. Kennedy, W. A. Wilson, and H. B. Wright, assignees, on January 9th, 1874, by patent No. 525, volume 41, and beginning at the southeast corner of the F. G. Beasley and the northwest corner of the T. B. Taylor 320-acre survey, a pile of rock; thence east, with north line of the R. B. Taylor survey, 825 varas, to rock in said line; thence north 760 varas, to the southeast corner of the H. H. Edwards 160-acre survey, a pile of rock in prairie; thence west 825 varas, with the south line of said Edwards survey, to a rock in the east line of said F. G. Beasley survey; thence south, with the east line of said F. G. Beasley, 760 varas, to the place of beginning. Third tract: Being 134 acres of the S. C. Inman survey of 640 acres, patented to L. J. Edwards, assignee, on May 30th, 1854, by patent No. 230, volume 10, said tract of 134 acres being a part of a 267-acre tract out of said Inman survey not sold by L. J. Edwards, and lying south of the Texas and Pacific Railway, and north of Clear Fork of Trinity river, and being described by metes and bounds as follows: Beginning at the south boundary line of said survey, 250 varas to center of river; thence down said river, with its meanderings, to the southwest corner of a 40-acre tract owned by L. M. Funck; thence north, with said Funck's west line, 266 varas, to right of way of Texas and Pacific Railway; thence south, 63 1/2 degrees west, with said right of way, 890 varas, to the west line of said Inman's survey; thence south, with the west line of said survey, 770 varas, to the place of beginning. To have and to hold the herein described premises, together with all and singular the rights and appurtenances thereto in anywise belonging, unto the said Zeno Carl Ross, trustee, to his successor or substitute in this trust, and to his and their assigns, forever. And we do hereby bind ourselves, our heirs, executors, and administrators, to warrant and forever defend, all and singular, the said premises, unto the said Zeno Carl Ross, trustee, to his successor or substitute, and to his and their assigns, forever, against every person whomsoever lawfully claiming or to claim the same or any part thereof. This conveyance is intended, however, as a trust for the better securing of four certain promissory notes, given by us, the said J. W. Burford and Matilda F. Burford, the grantors herein, bearing even date herewith, payable in gold coin of the present standard of fineness, if so required by the holder, to the order of the Western Securities Co., Fort Worth, Texas (with current rate of exchange on New York), with interest thereon after maturity at the rate of twelve per cent. per annum, until fully paid, and which said notes are substantially as follows: One principal note for fourteen thousand dollars, payable

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December 10th, 1892; one interest coupon note for fourteen hundred dollars, payable December 10th, 1890; one interest coupon note for fourteen hundred dollars, payable December 10th, 1891; one interest coupon note for fourteen hundred dollars, payable December 10th, 1892,-- with a special agreement in making and delivery thereof: That if any one of the above-mentioned notes remain unpaid for ten days after maturity thereof, or should any breach be made of any of the covenants, or should any tax be imposed on this deed of trust or on the notes secured hereby, by or within the state of Texas, then, at the option of the said the Western Mortgage and Investment Company, Limited, or of the holder of said promissory notes, the whole principal, with interest then accrued, shall at once become due and payable, and the holder may proceed to collect the same by sale under this deed of trust or otherwise, as such holder may elect; and should such holder elect, or should it become necessary to foreclose this deed of trust by suit or proceedings in court, then we agree to pay, as attorney's fees, ten per cent. on the amount so collected.

'And whereas, for the better securing of said notes, with interest due thereon, to the payee or indorsee or other holder thereof, we, the said grantors herein, do hereby covenant with the said the Western Mortgage and...

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