Brother v. Buchanan

• Decision Date: 01 January 1863
• Citation: 27 Tex. 241
• Parties: MONROE & BROTHER v. W. L. BUCHANAN AND OTHERS.
• Court: Texas Supreme Court

27 Tex. 241

MONROE & BROTHER

v.W. L. BUCHANAN AND OTHERS.

Supreme Court of Texas.

1863.

A. and B. proposed to exchange their respective homesteads. But on B.'s homestead there was an incumbrance which he was unable to discharge. To obviate this difficulty and consummate the exchange, it was agreed between A. and B. that A. should raise by mortgage on his homestead an amount equal to the incumbrance on B.'s. Accordingly, A. borrowed the amount from C., and executed to him his note with a deed of trust upon his homestead to secure its payment. A. and B. then interchanged conveyances and possession. In the conveyance from A. to B., the condition was stipulated that B. should pay off the note and deed of trust executed by A. to C.; but B. gave no written assumpsit of the debt. Held, that, under these circumstances, B. acquired only the equity of redemption of the property conveyed to him by A.; that the debt to C. was, in truth, a part of the purchase money of the property, and constituted a right in the property prior and superior to the homestead privilege of B., which could not attach in his favor until the debt was discharged. Held, further, that B. and his representatives could not invoke the statute of frauds to defeat the enforcement of the trust against the property; nor even, it seems, to resist a personal recovery against them.

NOTE.--Baker v. Ramey, ante, 52.

Under the above circumstances, B. having died without paying the debt to C., the latter, as trustee, proceeded to sell the property. At the sale D. became the purchaser at a sum sufficient to discharge the debt to C., who, upon its receipt, delivered up to A. his note, and conveyed the property to D., who thereupon sued the administrator and widow of B., and obtained judgment against them for the property in the district court, with a writ of possession, under which he was placed in possession of it. On appeal, however, the supreme court reversed the judgment on the ground that the sale by C., after the death of B., was void, and conveyed no title to D. Held, now, that such void sale did not discharge or extinguish the debt charged upon the property by the deed of trust; that the surrender of the note to A. by C. was immaterial; that D., as assignee of the rights of C., could enforce the incumbrance against the property by suit against the administrator, widow and heirs of B.; and that A. was not a necessary party defendant to such suit.

Equity will not only hold that to have been done which should have been done, but, in proper cases, will hold that which should not have been done to be still unperformed.

In equitable actions, when all the necessary parties have not been made, and no exception is taken for the want of them, the usual and better practice appears to be, not to dismiss the suit upon the hearing, but to continue it with an order to make the parties.

Where a jury has been waived and the cause submitted to the court below, as well upon the facts as the law, it is usual for this court, when the judgment is reversed, not to remand the case, but to pronounce such judgment as should have been rendered in the court below, provided it is apparent from the record that the proper judgment can be rendered here. But when it is apparent from the record that the proper judgment cannot be rendered in this court, the case, upon reversal, must be remanded to the district court for further proceedings.

ERROR from Gonzales. Tried below before the Hon. Fielding Jones.

This suit was instituted by the plaintiffs in error, Hugh W. and John Monroe, on the 28th of March, 1859, against W. L. Buchanan, as the administrator, Sarah J. Wyatt, as the widow, and others, as the minor heirs of William H. Wyatt, deceased. The object of the suit was to subject certain lots in the town of Gonzales, occupied by the widow and heirs of Wyatt, deceased, as their homestead, to the satisfaction of a certain deed of trust.

In this case a jury was waived and the whole cause submitted to the district judge. There was no conflicting evidence as to any of the material facts. They are briefly: That on the 13th of November, 1856, William M. and Mary J. Phillips executed and delivered to Everett Lewis a deed of trust on certain real estate in the town of Gonzales, to secure the payment of a promissory note for $750. That said deed of trust was made for the reason that said Phillips and wife were about to barter their said real estate for other like property in the town of Gonzales, owned by William H. Wyatt, the intestate of Buchanan, and Sarah J. Wyatt, his wife. The property of Wyatt and wife was at the time incumbered for about the sum of $750, and the property of each being supposed of about equal value, it was understood by and between Wyatt and wife, and Phillips and wife, that the latter should also incumber their property for the same amount, since the former could not raise the money to clear the incumbrance on their property. Phillips and wife, therefore, borrowed of Everett Lewis the sum of $750, and executed the said deed of trust to secure its payment. After this was done, to wit, on the 15th November, 1856, Phillips and wife and Wyatt and wife exchanged their above described property.

The deed from Phillips and wife to Wyatt and wife contains the following clause: “Provided and upon condition, however, that said Wyatt and wife, or assigns, will pay off and satisfy a certain note for the sum of seven hundred and fifty dollars, made, executed and delivered to Everett Lewis” (referring to the above described mortgage), “by us dated 13th of November, A. D. 1856, and bearing even date with a deed of trust upon the above described premises, by us given to said Lewis to secure the payment of said sum of seven hundred and fifty dollars, due nine months from the date of said note; otherwise said Wyatt and wife shall have and these presents shall be construed to be a conveyance with existing incumbrances of said deed of trust, and merely a quit-claim, subject to the legal and equitable consequences of a sale under said deed of trust.”

It was in evidence that W. H. Wyatt is dead; that subsequent to his death, Lewis, the mortgagee or trustee, proceeded to sell the land incumbered as aforesaid; that at such sale the land brought the amount of the note, and that Monroe & Bro. were the purchasers; that after the sale was made, the note was delivered to W. M. Phillips, one of the payors of the note.

A suit was then instituted in the district court of Gonzales county, by Monroe & Bro., to recover possession of the real estate so purchased, and was finally disposed of in the supreme court, wherein this court held that the sale by...