Browne v. King

• Decision Date: 06 June 1917
• Docket Number: (No. 5873.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 196 S.W. 884
• Parties: BROWNE v. KING et al.
• Court: Texas Court of Appeals

196 S.W. 884

BROWNE v. KING et al.

(No. 5873.)^*

Court of Civil Appeals of Texas. San Antonio.

June 6, 1917.

Rehearing Denied July 2, 1917.

Appeal from District Court, Nueces County; W. B. Hopkins, Judge.

Action by Dimas F. Acebo and another against Mrs. H. M. King and others; W. H. Browne, intervening. From judgment for defendants, intervener appeals. Affirmed.

J. C. Scott, of Corpus Christi, and P. M. Young, of Marshall, for appellant. Joseph K. Wells, Jas. B. Wells, and Harbert Davenport, all of Brownsville, for appellees.

FLY, C. J.

This suit was instituted by Dimas F. Acebo and Joseph A. Acebo against Mrs. H. M. King to recover an undivided interest of 1,044.86 acres of land out of the "Rincon de Boveda" and "Rincon del Grullo" grants of land, now in Kleberg county, but when in Nueces county. On July 19, 1913, the Acebos conveyed the and to Mrs. King, and thereby settled and compromised the suit. We are led to infer that for some reason, perhaps because the court was not in session, the cause was not dismissed, and on December 31, 1913, appellant filed what is denominated a "plea of intervention," in which it was alleged that appellant owned an interest in the land by virtue of a power of attorney coupled with an interest, executed to him by the Acebos, which empowered him to sue in their names for the land, and that he had employed counsel and had the suit instituted, which they had fraudulently, and with intent to deprive him of his interest in the land, compromised without the knowledge or consent of appellant or his counsel, and had conveyed the land to Mrs. H. M. King. He prayed for damages in the sum of $16,978.97, one-half of the value of the land, and for $941.40, the rental value of one-half of the land, and the foreclosure of a lien on the same, as against the Acebos, and for one-half the land as against Mrs. King. A verdict was instructed for appellees, and judgment rendered thereon.

Domingo Rotge is the common source of title, Mrs. King claiming through a deed of trust executed by Domingo Rotge to R. W. Stayton, trustee, to secure a promissory note for $3,000, given by Rotge to Mrs. King on October 17, 1889; said deed of trust being given on the land in controversy. On December 12, 1894, Mrs. King obtained a judgment for her debt and a foreclosure of her lien against Rotge, and the land was regularly sold under the judgment, and was bought by the Milmo National Bank for $4,822, and a deed duly executed by the sheriff and duly recorded. A special warranty deed was made by the bank to Mrs. King on May 19, 1897, and was duly recorded. On July 18, 1913, Dimas F. Acebo and Joseph A. Acebo conveyed a one-half interest in the land to Mrs. King, the recited consideration being $4,500, and the deed was duly recorded.

Appellant showed that on September 1, 1891, about two years after he had executed the deed of trust to Mrs. King, Domingo Rotge executed a deed to the same land, consisting of 1,044.86 acres, to Jose Acebo, which was duly recorded. That deed was made subject to a deed of trust in favor of Mrs. H. M. King for $3,000. Jose Acebo died, leaving a will bequeathing to his wife, Annie K. Acebo, all of his estate. The will was duly probated; the widow being appointed independent executrix. On September 20, 1907, Mrs. Annie K. Acebo executed a deed, conveying to Joseph A. Acebo and Dimas F. Acebo the 1,044.86 acres of land conveyed by Rotge to Jose Acebo. In September, 1907, the last-named parties executed to W. H. Browne, appellant herein, a power of attorney giving him authority, in connection with the land in controversy, and providing for his compensation as follows:

"And we hereby authorize and empower the said Wm. H. Browne, for us and in our name, and as our agent and attorney in fact, whenever and as often as in his judgment it may seem advisable, to employ counsel, and institute suit or suits for the protection of our interests and title in and to said property, or any part thereof, and also to institute any suit or suits that may be necessary or requisite against adverse claimants, if any, or to remove clouds, if any, from our title to same, or any part thereof, or to effect a partition, or to agree on any amicable partition of said property, and to sign all necessary deeds, contracts, and instruments. He is hereby authorized to lease all or any part of said property, for such time, and on such terms, as he may desire. The said Wm. H. Browne is empowered for us and in our name, as our agent and attorney in fact, to sell all or any part of the aforesaid property, with or without general warranty of title and on such terms as he deems best; we hereby giving and granting unto our said agent and attorney in fact the sole and exclusive right to sell our said interests, and to perform and exercise all the rights and powers that we, as owners, might or could perform, if acting for ourselves, whether in making a sale thereof, or in making other disposition of the same, or doing anything else, or making any contract, in regard thereto. In consideration of the services rendered and to be rendered by the said Wm. H. Browne in effecting recovery of our said property, or selling or partitioning of same, or in otherwise representing and acting for us, in the exercise of the powers herein granted, we hereby grant and give unto the said Wm. H. Browne, his heirs and assigns, one-half of the amount of land so recovered, and one-half of the proceeds of any and all sales that may hereafter be made, and one-half of all moneys recovered as damages, he to retain his said one-half and deliver the other one-half to us, our heirs or assigns."

This suit was instituted by an attorney employed by appellants, and while the same was pending Joseph A. Acebo and Dimas F. Acebo conveyed the land to Mrs. King. Appellant claims a half interest in the land or its value through the power of attorney.

When Rotge executed the deed of trust to Mrs. King, the legal title to the land remained in him, and was conveyed by him to Jose Acebo by his deed. A mortgage or deed of trust is but a security for the debt; the title remaining in the mortgagor, subject to be divested by foreclosure. Wright v. Henderson, 12 Tex. 43; Pratt v. Godwin, 61 Tex. 331; Stephens v. Motl, 82 Tex. 81, 18 S. W. 99; Wilkins v. Bryarly, 46 S. W. 266. The land was not sold by the trustee, but the instrument was treated as a mortgage and the lien given by it foreclosed. The judgment obtained by Mrs. King against Rotge, foreclosing her mortgage, did not affect the title acquired by Jose Acebo through the deed made by Rotge subsequent to the execution of the mortgage and prior to its foreclosure, and which deed was at once recorded. In order to divest the Acebos of their rights in the land, it was necessary to make them parties to the foreclosure proceedings. That was not done. Bradford v. Knowles, 86 Tex 505, 25 S. W. 1117; Thompson v. Robinson, 93 Tex. 165, 54 S. W. 243, 77 Am. St. Rep. 843; Davis v. Lanier, 94 Tex. 455, 61 S. W. 385; Brown v. Cates, 99 Tex. 133, 87 S. W. 1149. It follows that, whatever title to the land that the Acebos had when the mortgage was foreclosed, they retained afterwards. In other words, they held the legal title to the land before the foreclosure of the mortgage lien, and they held it afterwards unaffected by the foreclosure.

It appears from the statement of facts that Mrs. King pleaded limitation of three, five, and ten years in this case before the compromise was made and a deed executed to the land by the Acebos to Mrs. King. No effort was made by appellant to show that Mrs. King did not have title to the land by limitation, although it had been conveyed to her by the Milmo National Bank ten years before this suit was instituted. Appellant's right to the land, if he had any, was dependent on proof that the title to the land was in the Acebos, for in the power of attorney nothing was conveyed to him except a part of what he might recover. If he had any...