B. F. Avery & Sons v. Texas Loan Agency

• Decision Date: 09 March 1901
• Citation: 62 S.W. 793
• Parties: B. F. AVERY & SONS v. TEXAS LOAN AGENCY et al.
• Court: Texas Court of Appeals

62 S.W. 793

B. F. AVERY & SONS v. TEXAS LOAN AGENCY et al.

Court of Civil Appeals of Texas.

March 9, 1901.

Error from district court, Navarro county; L. B. Cobb, Judge.

Action by B. F. Avery & Sons against the Texas Loan Agency and others. From a judgment in favor of defendants, plaintiff brings error. Reversed.

Callicutt & Call and McCormick & Spence, for plaintiff in error. Frost, Neblett & Blanding, for defendants in error.

TEMPLETON, J.

H. C. Moseley was indebted to the Texas Loan Agency, a corporation, and on May 1, 1887, executed and delivered to it a deed of trust on certain lands situated in Navarro county to secure said indebtedness. The trust deed was in the usual form, and provided for a trustee, with power of sale. On March 2, 1891, B. F. Avery & Sons, a corporation, recovered a judgment against Moseley in the county court of said county, and on March 23, 1891, caused an abstract of the judgment to be duly recorded. In 1892 the loan agency brought suit in the district court of Navarro county against Moseley and others to foreclose its lien on said lands; and on April 7, 1893, judgment was rendered in said suit in favor of the loan agency for the amount of said debt, with a foreclosure of its said lien. B. F. Avery & Sons was not a party to the suit. No order of sale, execution, or other process was ever issued on said judgment. Moseley died, and his widow, Mrs. L. L. Moseley, on May 1, 1895, executed and delivered to the loan agency a special warranty deed conveying to it the said lands in satisfaction of said judgment. B. F. Avery & Sons was not a party to the transaction. The agency had constructive, but not actual, notice of appellant's lien. At that time the lands were worth no more than the amount due on the judgment, and Moseley's estate was insolvent. The loan agency took possession of the lands under its deed from Mrs. Moseley, and sold various tracts thereof to divers persons. In 1899, and before the bringing of this suit, the loan agency procured the original trustee in the deed of trust given to it by Moseley in 1887 to sell the lands in accordance with the provisions of the trust deed, and at the sale it became the purchaser of said lands, and received a deed from the trustee. On October 20, 1899, B. F. Avery & Sons brought this suit in the district court of Navarro county against the loan agency and the parties to whom the agency had sold parts of said lands. It admitted the priority of the agency's lien, but denied that its judgment lien was affected by the transactions above set out, and sought to enforce its lien, subject to the lien of the agency. It offered to satisfy the agency's lien, and asked, in the event that it was permitted to do so, to be subrogated to the liens and equities of the agency. There was a trial by the court without a jury, and judgment was rendered for defendants. B. F. Avery & Sons brought the case to this court by writ of error.

The trial court correctly held that the foreclosure judgment in favor of the agency against Moseley, and the deed from Mrs. Moseley to the agency, did not operate as a foreclosure against B. F. Avery & Sons, or have the effect to destroy its judgment lien. As B. F. Avery & Sons was not a party either to the...