Western Mortg. & Inv. Co. v. Burford

• Decision Date: 01 April 1895
• Docket Number: 202.
• Citation: 67 F. 860
• Parties: WESTERN MORTG. & INV. CO., Limited, v. BURFORD et ux.
• Court: U.S. District Court — Northern District of Texas

67 F. 860

WESTERN MORTG. & INV. CO., Limited, v. BURFORD et ux.

No. 202.

United States Circuit Court, N.D. Texas.

April 1, 1895

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.

(Image Omitted) 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 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 Investment Company, Limited, and its assigns, as follows: That the herein-described property is not our homestead, nor claimed, used, or enjoyed by us as such, and that we have other property which we occupy and claim as such, and that the principal note secured by this deed of trust is given partly for and in lieu of a certain note of $6,300.00, and recorded in volume 11, page 302, of records of mortgages and deeds of trust for Tarrant county, Texas; said note of $6,300.00 being now this day paid off for us, and at our special instance and request, by the said company, with the express understanding and agreement that said company is thereby subrogated to all the rights, both legal and equitable, of the payee in and holder of said note so paid off, including all their rights against said land, and under said deed of trust given to secure said note of $6,300.00. That we will pay the said notes and interest thereon as the same become due and payable. That we have a good and perfect title in fee simply to the said lands, and have the right to convey the same to the said Zeno Carl Ross, trustee. That we will execute, or procure to be executed, such further assurances upon the said land as may be requested from us by the holder of said notes or by said trustee. That the said land is free and clear of all incumbrances. That we will maintain all buildings and improvements in their present condition, and will not do or suffer any waste of the premises. And that we will pay all taxes or assessments levied by or within the state of Texas upon the said premises, and also (should the holder of said notes so desire) upon this deed of trust or the notes thereby secured before the same become delinquent.

'And it is hereby agreed between the parties hereto that the said the Western Mortgage and Investment Company, Limited, or other holder of said notes, may pay all insurance, taxes, or rates that may from time to time fall due and be unpaid in respect of the premises herein described, and this deed of trust, or the notes hereby secured, and charge such payments with interest thereon at the rate of twelve per centum per annum, on the said premises; and in case the said the Western Mortgage and Investment Company, Limited, or any holder of said notes, satisfy any charge on the lands, or make any further advances for insurance, taxes, or otherwise, to, or on account of, the grantors herein, or be put to any expense in defending the title to said premises, the amount paid in respect thereof shall be payable forthwith, with...