Bailey v. Block
| Decision Date | 15 February 1911 |
| Parties | BAILEY et al. v. BLOCK et al. |
| Court | Texas Supreme Court |
Trespass to try title by Mrs. Alice M. Bailey and another against B. Block and another. From a judgment of the Court of Civil Appeals (125 S. W. 955) affirming a judgment for defendants, plaintiffs bring error. Reversed and remanded.
Geo. H. Breaker, I. P. Hutchinson, and Spotts & Matthews, for plaintiffs in error. Ross & Wood, Baker, Botts, Parker & Garwood, G. H. Pendarvis, and H. J. Dannenbaum, for defendants in error.
This is an action of trespass to try title for land in the city of Houston, the decision of which depends on the validity of a sheriff's sale thereof made in 1886 to A. P. Lufkin, under a judgment in his favor against Mrs. Louise Bremond, independent executrix of the will of Paul Bremond, deceased, to whose estate the land belonged. The plaintiffs in error, plaintiffs below, claim under deeds from Mrs. Bremond, who was also the devisee under the will, and the defendants claim under the prior sheriff's sale. The judgment under which the sale was made established the debt against Bremond's estate, and also foreclosed a mortgage given to secure it on two pieces of land other than that in controversy, in the terms of article 1340, Rev. St. 1895. The order of sale, which was in conformity with the judgment, was received by the sheriff November 5, 1886, and he advertised the mortgaged property for sale on the next sale day, and at the same time indorsed on the writ a levy on the property in controversy, and advertised it also for sale, as under execution on the next sale day. When that day arrived, he first sold one piece of the mortgaged property and offered the other, but received no bid, and then sold the land in controversy to make up a balance of the judgment left unpaid.
It is found by the trial court that the sheriff, before levying on the land in controversy, ascertained that the mortgaged property would be insufficient to satisfy the judgment, and for that reason made the levy on other land.
The question, of course, is whether or not the sale of the land in controversy was void, and the decision of it depends on the effect of several statutory provisions. Article 1340 prescribes that the judgment to be rendered on foreclosure of a mortgage "shall be * * * that an order of such sale issue to the sheriff," etc., directing him to sell the same (the mortgaged property) as under execution in satisfaction of the judgment;" and if the property cannot be found, or if the proceeds of such sale be insufficient to satisfy the judgment, then to make the money, or the balance thereof remaining unpaid, out of any other property of the defendant, as in case of ordinary executions."
Article 2338 prescribes the requisites of executions; the second and third subdivisions being:
Article 2343, which is the chief reliance of counsel for defendant, is as follows: "When an execution against the property of any person is issued to an officer, he shall proceed without delay to levy the same upon the property of the defendant not exempt from execution, unless otherwise directed by the plaintiff, his agent, or attorney."
Much light is thrown upon the meaning and purpose of article 1340 by the history of the development of the law regulating the collection of balances, called "deficiencies," due on mortgage debts after exhaustion of the property given to secure them. Originally, the mortgagee could only enforce his mortgage against the property. Later it was established that, if he had a bond or obligation for the debt collateral to the mortgage, he might, after application of the proceeds of the mortgaged property, maintain an action at law thereon for any balance unpaid. Afterwards, by statute, rule of court, or otherwise, it became the practice in some jurisdictions for the creditor, after the foreclosure and sale of the property and the return thereof showing the result, to apply to the court which decreed the foreclosure for a deficiency judgment, and, in other jurisdictions, for the judgment of foreclosure to provide for a report of the sale, the application of the proceeds, and the issuance of execution for any balance ascertained in that way. The last was the procedure in this state (Paschal's Dig. art. 1480) prior to the revision of 1879, when the further advance shown in article 1340 was made. To all of these practices one prominent requirement is common, and that is that the foreclosure sale is to be made, the proceeds applied, and the deficiency thus mathematically ascertained before any proceeding against the property of the debtor, other than that mortgaged, is allowed. This is true whether the fact is to be ascertained by the court as the basis of a deficiency judgment, or by the clerk or referee as the basis of a deficiency execution authorized by the decree of foreclosure. Jones on Mortgages (6th Ed.) §§ 1709a et seq., 1920; Freer v. Tupper, 21 S. C. 81; McCall v. Rogers, 77 Ala. 349; Freeman on Executions, § 10; 27 Cyc. 1746, 1751, 1752, 1754, 1756, 1760, 1761.
Neither the court nor the clerk is allowed by such statutes to estimate in advance the proceeds that will probably result from a sale, and award judgment or execution for a probable balance. Is such a power given to the sheriff by our statute? It as plainly denies it to him, as other statutes referred to deny it to the court or the clerk. The law is so stated in the opinions in Seligson v. Collins, 64 Tex. 314, and Ward v. Billups, 76 Tex. 466, 13 S. W. 308. The point may have been involved in the former case only incidentally and in the latter not at all, but we are satisfied that the statements made of the law are correct. To the same effect are the decisions in Thomas v. Simmons, 103 Ind. 543, 2 N. E. 203, 3 N. E. 381, and Mitchell v. Ringle, 151 Ind. 16, 50 N. E. 30, 68 Am. St. Rep. 212,...
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...Jur. p. 928, § 102, p. 930, § 103; 3 Jones on Mortgages (8th Ed.) § 1739; 42 Corpus Juris, p. 284, § 1963, p. 285, § 1964; Bailey v. Block, 104 Tex. 101, 134 S. W. 323. This was the status of defendant in error's judgment debt and the statutory remedy for its collection when the Legislature......
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