Adm'r v. Davenport

• Decision Date: 01 January 1852
• Citation: 8 Tex. 451
• Parties: GIVENS' ADM'R v. DAVENPORT.
• Court: Texas Supreme Court

8 Tex. 451

GIVENS' ADM'R

v.DAVENPORT.

Supreme Court of Texas.

1852.

Where the defendant in a suit for the foreclosure of a mortgage on real estate or negroes dies, it is not necessary, under the 772 art. Hart. Dig., to make the heirs interested in the mortgaged property parties; otherwise, where the suit is commenced against the executors or administrators in the first instance.

Where a deed of trust and mortgage provided that the trustee should proceed to sell, in a certain event, upon request of certain beneficiaries in writing, it was held that although it were admitted that the trustee could not not have proceeded to sell if the property had remained where the trust deed had left it, (in Alabama,) yet, when he was prevented by the acts of the defendant (running the property off to Texas) from executing the trust in the specific manner pointed out in it, and had to resort to a suit to foreclose the mortgage, it could be enforced by the direction and according to the rules of the forum to which the trustee had been compelled to resort to secure the trust reposed in him.

Where a deed of trust and mortgage recited that the grantee stood “indebted to the estate of Joseph A. Mabry in the sum of sixteen thousand five hundred dollars, as executor, &c., subject to a final settlement with the County Court clerk” (of Knox county, Tenneesee,) and, “but if the said grantor shall, in good faith, pay the within-named debt and interest, or so much of it as may be found due on settlement, &c., (as aforesaid,”) it was held that in a suit to foreclose the mortgage it was not necessary for the trustee to introduce any further evidence of the amount of the indebtedness than was contained in the deed of trust, and therefore that the question whether the transcript of a record of the County Court (of Knox county, Tennessee,) ascertaining the amount to be less than the amount named in the deed was properly authenticated, was immaterial.

A person who has been guardian of a minor is a competent witness in a suit on behalf of the heirs against an administrator to prove that he had never received any money from the administrator as guardian; the objection would, at most, affect his credibility.

Article 1168 Hart. Dig., only applies to proceedings of the County Court, and does not affect article 772, which provides that where judgment is recovered in the District Court in a suit against an estate for the enforcement of a specific lien on personal property, the property subject to such lien shall be seized and sold by the sheriff, if it can be found, &c.

A trustee in a deed of trust made in another State may follow the trust property to this State and enforce the trust by suit without making the cestui que trusts parties.

Appeal from Houston. On the 4th of January, A. D. 1847, the appellee brought suit against appellant's intestate for the foreclosure of a mortgage made and executed to him in trust in the State of Alabama. The mortgage was in substance--

“This deed, entered into on the 12th day of June, 1843, between William T. Givens, of the county of Benton and State of Alabama, of the first part, and Joseph Davenport, trustee, as appointed by the parties for the purposes hereinafter expressed, witnesses, that the said William T. Givens stands indebted to the estate of Joseph A. Mabry, deceased, of the county of Knox and State of Tennessee, in the just and full sum of sixteen thousand five hundred dollars, as executor of Joseph A. Mabry, deceased, subject to a final settlement with the County Court clerk of Knox county, Tennessee, for which payment, well and truly to be made, Alexander Campbell and William Morris, both of the county of Knox and State of Tennessee, stand my securities as executor of the said Mabry, deceased, and being desirous of securing and making certain the payment of the above-named sum when it shall fall due, and holding harmless the above-named Campbell and Morris as my securities, and having confidence in the said Davenport, trustee as aforesaid, and it being agreed upon by all the parties to this deed, the said Givens, for and in consideration as aforesaid, and the additional consideration of one dollar paid by the said Davenport, trustee as aforesaid, has bargained and sold to the said Davenport for the security of the said debt due as aforesaid, and pledges, puts in trust, and makes over to said Davenport the following-described property,” commencing with lands particularly described but not necessary here to be inserted, and then followed the names of nineteen negro slaves and some other personal property, and then continued: “under the express stipulations following, that is to say, that the property herein mentioned and conveyed in trust as aforesaid is to remain in the possession of the said William T. Givens, to provide and keep the same as if it were really his own until as hereinafter described; that if the said debt shall not be paid on or before the 25th day of December, A. D. 1846, then, whenever the said Alexander Campbell and William Morris, their agents or attorneys, shall require the said Davenport in writing to proceed in the execution of the trust herein reposed on him, the said Davenport shall, immediately on such requisition being made, take possession of said property herein conveyed in trust, and shall sell the same under the following restrictions, viz, after advertising the aforesaid property for thirty days at three public places in the said county, one of which shall be at the court house of the said county, shall sell the same at public outcry at Alexandria, in the said county, to the highest bidder for cash, which property the said Givens agrees to deliver up when called for; and of the proceeds of the said sales the said Davenport is to pay, first, all necessary expenses attending the business; and secondly, to discharge the above-named debt of sixteen thousand and five hundred dollars and interest; and thirdly, if there should be any overplus, to pay the remainder to the said Givens, &c., &c. But if the said Givens shall, in good faith, pay the within-named debt and interest, or so much of it as may be found due on settlement with County Court clerk of Knox county, Tennessee, and also pay the expenses of this conveyance, then all and every part of this conveyance shall be null and void, and the right of property mentioned shall be in the said Givens.”

The plaintiff in his petition alleged that there was a balance of the debt still due and unpaid, amounting to seven thousand nine hundred and eighty-five dollars, besides interest thereon, at the rate of six per cent., for which the said slaves were liable for satisfaction; that in November, 1845, or about that time, the said Givens, without the knowledge or consent of the said plaintiff, removed the said negroes, and other personal property, or the greater part thereof, from the county of Benton aforesaid, and brought them to Houston county, in the State of Texas; that the said Givens refuses to deliver up the said property to be sold to satisfy the said debt, interest, and costs; prayed for process against the said Givens, and citation, and for a decree that the said slaves and other property be sold to satisfy the said debt, & c., &c.

The defendants answered, setting up credits he was entitled to on account of insolvency of debtors of the estate; that the debt had been paid subsequently to the execution of the deed of trust by his co-executor; that this suit is not prosecuted at the instance of Campbell and Morris, his securities, but at the instance and for the benefit of the heirs of Mabry; and a general denial. After these answers the death of the defendant was suggested, and William H. Lawrence made a party as his administrator.

At the April Term, 1849, the administrator had leave to amend his answer; and he pleaded the want of proper parties, set out the names of the heirs of Givens, and prayed that the...