Ayres v. Cayce

• Decision Date: 01 January 1853
• Parties: AYRES, ADM'R, v. CAYCE AND OTHERS.
• Court: Texas Supreme Court

10 Tex. 99

AYRES, ADM'R,

v.CAYCE AND OTHERS.

Supreme Court of Texas.

1853.

Where a judicial sale under our former laws stipulated for a mortgage, and in case of failure to pay for a summary order of seizure and sale on application to the primary judge, such order of seizure and sale, when obtained, merged the mortgage; and this order should be made the foundation of subsequent proceedings to enforce the lien.

Where suit was brought in October, 1848, to foreclose a mortgage dated January, 1834; and an amendment was filed in May, 1851, setting up a decree obtained before a primary judge in 1835, for the seizure and sale of the mortgaged property, the court said, “If we are to regard this decree as of any consequence it will not relate back to the filing of the original petition, but must be taken as if the amendment by which it was set up was the beginning of the suit. It would be barred by the limitation of ten years. More than ten years had expired after the passage of the act of limitations of the 5th of February, 1841, before the making of the amendment.”

The 8th section of the act of limitations of the 5th of February, 1841, (Hart. Dig., art. 2384,) included judgments and decrees for the enjorcement of liens.

Quere? Where a mortgage embraces several tracts, and the mortgagee sues to foreclose against one only which has been subsequently sold.

Appeal from Brazoria.^a1 On the 20th day of October, 1848, George Huff, administrator of Samuel Sawyer, deceased, filed his petition in the District Court of Brazoria county against Thomas Cayce, Thomas F. McKinney and Samuel M. Williams, in which petition it was alleged, that on the 8th day of January, 1834, as administrator, at public sale he sold in the town of Brazoria, to Thomas Cayce, two tracts of land lying on the San Bernard river, one tract known as the Teel tract, containing one league, and the other below the Teel tract, containing one-half league, being the upper half of league No. 13, granted to Charles Garrett; that the said tracts of land were sold for the sum of two thousand one hundred and thirty-five dollars, for which said sum said Thomas Cayce executed his note with Warren D. C. Hall and Augustus Williams, payable 1st January, 1835; that said note being unpaid petitioner sued, and recovered a judgment on the 22d day of October, 1839, in the District Court of Brazoria against Cayce, Hall and Williams, for the amount of said note and interest from the time when due and costs, which judgment yet remained unpaid; that on the 10th day of January, 1834, said Cayce executed and delivered to petitioner the instrument marked (A) which is made part of the petition; Thomas F. McKinney and Samuel M. Williams, claimed to have purchased said half league of land so sold to Cayce; that if such purchase was made, it was with full notice of the lien then created by said instrument A; that Cayce is a citizen of Brazoria county, and McKinney and Williams of Galveston county; and petitioner prayed that said half league of land might be decreed to be sold for the satisfaction of petitioner's claim, and for other relief, &c.

Exhibit A purported to be a mortgage executed before an alcalde of the jurisdiction of Brazoria, in which there was an acknowledgment of the purchase of the two tracts of land mentioned, the amount of the purchase-money, the execution of the note with surety; and it is agreed that said tracts of land should be and remain mortgaged to secure the payment of said note; and upon default that it should only be necessary to apply to the proper authority for an order to sell said tracts of land, &c.

The defendant Cayce on the 9th day of November, 1848, demurred: and for cause of demurrer, assigned,

1st. Because a judgment has been rendered against the defendant on the note described in the petition.

2d. Because said note was merged and extinguished by said judgment; and the pretended mortgage was thereby discharged, released, and annulled.

3d. Because he, defendant, is improperly joined with other persons in this suit, between whom and this defendant there is no privity.

4th. Because it is not shown what disposition has been made of the league of land described in the petition; why it has not first been sold for the payment of the debt, nor who is the owner or claimant; and because the owner and claimant of said land is not made a party to this suit.

Other pleas were interposed which it is unnecessary to notice, as no question arose upon them.

The defendant Samuel M. Williams demurs, and for cause of demurrer assigned in addition to those assigned by Cayce.

No sufficient diligence is shown on the part of the petitioner to preserve his pretended lien.

And he answered further, which is not necessary to be noticed.

At the fall Term 1849, death of plaintiff suggested and sci. fa. ordered. At the fall Term 1850, David Ayres, administrator, &c., came into open court and made himself a party. On the 5th day of December, 1850, defendant, Thomas F. McKinney, filed his general demurrer to the plaintiff's petition; and answered further, which it is not necessary to notice.

On the 8th day of May, 1851, the plaintiff by leave of the court first had and obtained, amended his petition, and stated that on the 28th day of January, 1835, George Huff, administrator of Sawyer, presented his petition to Silas Dinsmore, Judge, &c., which petition was marked B, and made part of the amendment, and on the 2d day of March, 1835, said Judge renderd a decree, a copy of which marked C, was annexed, and on the same day by virtue of said decree, a writ of seizure and sale of the lands in said mortgage, in favor of said Huff, administrator, &c., against said cayce, was issued; which was placed in the hands of the sheriff, but never executed, in consequence of the difficulties between citizens of Texas and the government of Mexico; that on the 13th day of April, 1837, after due notice and payment demanded of said Cayce, another execution was issued in favor of said Huff, administrator, &c., against said Cayce, for the sale of said land; which was enjoined upon the petition, prayer, and affidavit of said Cayce by order of B. C. Franklin, Judge of the second judicial district, on the 2d day of May, 1837, as appears by the records of the court; and that said original mortgage had been of file and record since the making thereof. And he prayed judgment that said land might be decreed to be sold for the payment of said debt; that the defendants be foreclosed, &c.

Exhibit B was a petition stating the sale of the land, the giving the note and mortgage, the non-payment of the money, and asking a sale--upon which the judge ordered a sale on sixty days' notice.

On the 9th day of May, 1851, defendant Cayce filed his general demurrer to the amended petition of plaintiff. On the 9th May, 1851, the defendants McKinney and Williams demurred, and for cause of demurrer assigned,

1st. The said plaintiff in his said petition sets out and shows no good and sufficient subsisting lien or mortgage on the land in the petition mentioned.

2d. The mortgage sued on has never been recorded in the county in which the land is situated.

And they answered further, which is not necessary to notice.

On the 10th May, 1851, the plaintiff filed another amendment by leave of the court, in which he stated that the execution issued against Thomas Cayce, on the 13th day of April, 1837, was enjoined as set forth in the amended petition filed on the 8th day of May, 1851: and the said injunction was perpetuated conditionally as appears from the records of this court; and he attaches a copy of the judgment thereupon, marked (D) as part of this amendment; that, on the 2d day of May, 1837, Jane Sawyer, widow of said Samuel Sawyer, deceased, filed her petition in which she claimed one-half of said land sold to said Cayce, and prayed that said sale be annulled; that said petition on motion of said Jane Sawyer was dismissed; that said claim was the sole ground alleged by said Cayce, in his petition, for the obtaining and perpetuating said injunction; that said Huff and Cayce, by their attorneys of record, during the pendency of the suit made this agreement:

“In the case of Thomas Cayce v. George Huff, administrator of Samuel Sawyer, on bill of injunction, it is agreed between W. H. Jack and John A. Wharton, counsel for the respective parties, that the injunction be made perpetual, Huff to pay costs. And in obtaining an order of seizure and sale the said Cayce waives all forms of law except sixty days' notice of said sale;” that the petitioner brought into court a release from Jane Sawyer to said Cayce, which he prayed to be considered a full satisfaction of the condition annexed to said judgment of perpetuation. Plaintiff further alleged that the title obtained by said Cayce for said land, contained a judicial mortgage; that the judgment against said Cayce, Hall and Williams is still unpaid and executions have issued from term to term to this...