Clark v. Elmendorf

• Decision Date: 20 January 1904
• Citation: 78 S.W. 538
• Parties: CLARK et al. v. ELMENDORF.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

78 S.W. 538

CLARK et al. v. ELMENDORF.^*

Court of Civil Appeals of Texas.

January 20, 1904.

Appeal from District Court, Bexar County; S. J. Brooks, Judge.

Action by Mrs. Henry Elmendorf against Rushby Clark and another. From a judgment in favor of plaintiff, defendants appeal. Modified.

Paschal & Ryan, for appellants. James Routledge, for appellee.

FLY, J.

This is an action of trespass to try title to lands situated in and near the city of San Antonio, instituted by appellee against Rushby Clark and Edward MacKechnie. The jury returned a verdict in favor of appellee for the land, and for rent in the sum of $100 against MacKechnie, and against Clark for $300. As will more fully appear herein, a remittitur of $100 was made the condition of overruling the motion for new trial, and the court entered a judgment for appellee, as amended by the remittitur.

On September 11, 1897, the Lakeview Land Company, a corporation, executed a deed of trust on the land in controversy to George C. Altgelt, as trustee, to secure Mrs. Minna Herff in the payment of a certain promissory note for $8,000 principal, and six other notes for the interest to become due on the principal sum. Payment of the notes was guarantied by Henry Elmendorf, the deceased husband of appellee. When the principal note became due, in September, 1900, the Lakeview Land Company failed to pay it; and the guarantor, Henry Elmendorf, paid $2,000 on the principal, and $320 interest, and $125 attorney's fees on June 1, 1901, and the holder of the notes granted an extension on them for one year. Henry Elmendorf died in December, 1901, and appellee was appointed his executrix. The land company failed to pay any part of the notes, or the state, county, and city taxes due on the land for 1901; and on March 1, 1902, appellee paid $6,222.70, being the balance due on the notes, and the same were transferred to her by Dr. Adolph Herff and Mrs. Minna Herff, the holders thereof. It was provided in the deed of trust given by the Lakeview Land Company to Mrs. Herff that "should said Lakeview Land Company fail to pay the State, County or City taxes upon said property, according to the tax rolls in the hands of the tax collectors, then and in such case the whole of said indebtedness remaining unpaid, shall at the option of the said M. Herff, or holder, or holders of said obligations mature and become payable and the lien created by this deed may then be foreclosed by judicial proceedings, or the said trustee, Geo. C. Altgelt, or his successor or substitute herein, as hereinafter provided, upon the request said M. Herff or other holder of said obligations (which request shall be presumed), may proceed to enforce and execute this trust and after advertising the time, place and terms of the sale of all the above conveyed and described property for at least twenty days," etc., and should sell the same. On March 5, 1902, the taxes remaining unpaid, appellee declared the notes due, and requested the trustee to sell the lands described in the deed of trust. The sale took place as provided by law and the terms of the deed of trust on April 1, 1902, and the land was sold to appellee.

The first assignment of error complains of the deed from the trustee to appellee being admitted in evidence, on the ground that the debt was not due, an extension having been granted until June 1, 1902, and the sale was therefore void. If it should be admitted that appellants could take advantage of such a matter as the lack of maturity of the debt of the mortgagor at time of foreclosure, with whom they have no privity, still we think there is no merit in the assignment of error. Under the terms of the deed of trust, the holder of the notes was empowered to declare the notes due if taxes were not paid; and the extension did not create a new contract, nor in any manner attempt to alter the terms of the old contract. The option to declare the debt due under the contingencies named remained the same.

There is no force nor merit in the contention that the clause as to the failure to pay taxes maturing the notes referred to taxes due prior to the execution of the mortgage. It evidently referred to taxes that might remain unpaid at any time before the principal debt became due.

Under the terms of the law of 1897, the taxes were delinquent on February 1st of each year, and after that time, if they were not paid, a penalty of 10 per cent. on the entire amount of the taxes accrued. The provision as to the collector on March 31st of each year making a list of delinquent taxes has no reference whatever to the time when the taxes are delinquent. Sayles' Ann. Civ. St. 1897, art. 5232j. The state and county taxes on the land in controversy for 1901 were delinquent, therefore, in March, 1902. The notices of sale were properly given, and the sale legally made thereunder.

The deed of trust purported to be executed by "The Lakeview Land Company by E. A. Gammon its president," and it is the contention of appellant that the mortgagor being a corporation, and it being recited in the mortgage that it was made by virtue of a unanimous resolution of its stockholders, it was incumbent upon appellee to prove the alleged authority, before the deed of trust was admissible in evidence. Unless it was incumbent on appellee to prove that the president of the land company was authorized to execute the deed of trust, the recital therein that it was executed under authority of the stockholders did not create the duty to prove it. However, setting aside a discussion of the authority of the president of the corporation to execute the deed of trust, the evidence was ample to show a ratification of his act by the corporation. It was in evidence that at various times after the execution of the deed of trust, and while it was in force and effect, the Lakeview Land Company asked for release of parcels of the land included in the deed of trust, and received and used the money the...