Duty v. Graham

CourtSupreme Court of Texas
Writing for the CourtHEMPHILL
Citation12 Tex. 427
PartiesDUTY v. GRAHAM.
Decision Date01 January 1854

12 Tex. 427

DUTY
v.
GRAHAM.

Supreme Court of Texas.

1854.


A mortgage in this State is a mere security for the payment of the debt; the mortgagor remains the real owner of the land, and entitled to its possession; and the mortgagee cannot sustain an action of trespass to try title or ejectment against the mortgagor on the mortgage. (Note 71.)

Where a debt which is secured by mortgage is barred by the statute of limitations, the creditor has no remedy upon the mortgage.

Appeal from Red River. Action of trespass to try title by the appellee against the appellant, commenced May 2d, 1848. The plaintiff relied on a mortgage from John J. Vining, dated March 18th, 1844, to secure the payment of $735 on the first day of January, 1845. The defendant claimed by purchase from the heirs of John J. Vining. John J. Vining died in April, 1844, and the plaintiff failed to present the claim to his administrator within the year. There was a demurrer in the Court below to the plaintiff's evidence, which was overruled; the case submitted to the Court, and judgment for the plaintiff.


Pease and Everts, for appellant. It is contended that under this mortgage the premises could not be recovered by an action of ejectment, at the present day, in any country where the Common Law prevails. For the action of ejectment in such cases is only allowed because at Common Law the fee is considered as vested in the mortgagee; but the estate recovered in such an action is not an absolute estate, for it is liable to be divested on payment of the debt by the mortgagor, and a Court of Equity will allow the mortgagor to redeem the estate, and require the mortgagee to account for the rents and profits, (4 Kent's Com., 166 to 168,) and he is treated as a trustee. (2 Story's Equity, Secs. 1015 and 1016.)

At the present day, under the Common Law as well as the

[12 Tex. 428]

Civil Law, a mortgage is considered and treated as a mere security for the debt. The only right or interest acquired by the mortgagee is that of having his debt paid out of the property. The action of ejectment and the suit in Equity for foreclosure are not rights growing out of the mortgage, nor incidents of the mortgage but they are mere remedies for the enforcement of it, and these remedies are suited to the manner of proceeding in the different Courts to which the mortgagee applies for relief. These different remedies are not known or recognized in this State, for although we have introduced the Common Law as the basis of our system of jurisprudence, yet we have never introduced the Common Law system of pleading and manner of enforcing rights in Courts of Justice. The Congress that introduced the Common Law expressly declared “that the adoption of the Common Law should not be construed to adopt the Common Law system of pleading.” (Acts of 4th Congress, page 88, Sec. 1.)

Our laws recognize but one form of action for the enforcement of private rights, whether they are legal or equitable; and our Courts are not confined to any particular form of giving relief. The party files his petition setting forth his rights and cause of action against the defendant, the Court in the same action considers and adjudicates upon legal and equitable rights. (See Acts 1st Legislature, page 365, &c.)

That this was the opinion of the Congress by which the Common Law was introduced, is apparent, for at the same session an Act to provide for the foreclosing of mortgages was passed. (Acts of 4th Con., p. 69.)

That our laws do not contemplate or permit an action of ejectment on a mortgage is also apparent from the fact that the Congress which adopted the Common Law also provided a mode of trying titles to land. (Acts of 4th Congress, p. 136.) This Act provides “that the method of trying titles to lands or tenements shall be by action of trespass, and if the jury shall find for the plaintiff, they may in the same verdict award damages for the mesne profits, and judgment shall be

[12 Tex. 429]

entered on such verdict, as well for the damages as for the recovery of the land, &c.” They could never have contemplated such a suit as a remedy on a mortgage, for a mortgagor cannot be treated as a trespasser until the mortgagee has regularly recovered possession. (4 Kent's Com., 155.) The mode of enforcing rights at Common Law having never been adopted in this country, we must look to our own statutes for the manner of enforcing them, and we look to our own statutes in vain for any authority to support an action like the present on a contract to secure the payment of money, and this mortgage is nothing more than that.

The mortgage in this case is but an incident and security for the debt named in it. If the debt had been assigned the mortgage would have followed it. No action could have been sustained on it, except by the holder of the debt. (4 Kent's Com., 194.) If the debt is paid, it is an extinguishment of the mortgage, and if a right of action on the debt is barred by limitation, there is nothing left to support the action on the mortgage.

The rule is that where a Court of Equity and a Court of Law have concurrent jurisdiction, if the right of action would be barred at law, a Court of Equity will not give relief, and certainly a different rule will not be adopted where the same Court considers and adjudicates all the rights of the parties equitable and legal.

A. Morrill, for appellee. The first point presented in this case is raised by the demurrer and contained in the question, Can a mortgagee in fee maintain a suit to recover the possession of the mortgaged property?


Passing over the English authorities, we appeal at once to writers of our own country. Chancellor Kent says, “Upon the execution of a mortgage, the legal estate vests in the mortgagee, subject to be defeated upon performance of the condition.” (4 Kent, 154.) “Technically speaking, the mortgagor has at law only a mere tenancy, and that is subject to

[12 Tex. 430]

the right of the mortgagee, to enter immediately, and at his pleasure, if there be no agreement to the contrary. He may at any time when he pleases, and before a default, put the mortgagor out of possession by ejectment or other proper suit. This is the English doctrine, and I presume it prevails very extensively in the United States.” (4 Kent, 155.) A mortagee or his assignee who has the legal estate may maintain ejectment. (Roscoe on Real Actions, 125, 139; Powell on Mortgages, 176, note F; 2 Story's Eq., Sec. 1017; 2 Ed. Ch. R., 80; 2 Fonbl. Eq., Book 3, Chap. 1, Sec. 3, note 1; 2 Greenl. Ev., Sec. 329.)

It is evident from the foregoing authorities, that whether our Courts are Courts of Law or Courts of Equity, or both, the action can be sustained, unless there be some statute denying the authority. The only mortgage Acts in force that I have seen, are the Acts of 1838, page 134; Acts 1840, page 69; Acts 1846, page 394, Sections 118 and 119. And these Acts, it will be seen, have reference to the foreclosure of mortgages and nothing else. It is neither expressly nor impliedly contained in either of these Acts, that the only remedy of a mortgagee is to foreclose; but the whole tenor and effect of them is to prescribe the form of an action to foreclose a mortgage in the same way that the Divorce Act prescribes a form for divorces, and the Act of Trespass to try Title, a form to recover real property.

At Common Law and in the Common Law States, a mortgagee has...

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44 practice notes
  • Colonial & U.S. Mortg. Co. v. Nw. Thresher Co.
    • United States
    • United States State Supreme Court of North Dakota
    • 27 avril 1905
    ...those courts have assumed, as it was expressly declared in Schmucker v. Sibert, 18 Kan. 104, 109, 26 Am. Rep. 765, and in Duty v. Graham, 12 Tex. 427, 435, 436, 62 Am. Dec. 534, that, because the mortgage is an incident to the debt, therefore the remedy to enforce the lien was also a mere i......
  • Fitzgerald v. Flanagan
    • United States
    • Iowa Supreme Court
    • 10 avril 1912
    ...16 L. R. A. 646;Clift v. Williams, 105 Ky. 559, 49 S. W. 328, 51 S. W. 821;Carson v. Cochran, 51 Minn. 67, 53 N. W. 1130;Duty v. Graham, 12 Tex. 427, 62 Am. Dec. 534;Hurley v. Cox, 9 Neb. 230, 2 N. W. 705;Hill v. Gregory, 64 Ark. 317, 42 S. W. 408;Law v. Spence, 5 Idaho, 244, 48 Pac. 282;Ha......
  • Ed. Fitzgerald v. Flanagan
    • United States
    • United States State Supreme Court of Iowa
    • 10 avril 1912
    ...L. R. A. 646); Clift v. Williams, 105 Ky. 559 (49 S.W. 328, 51 S.W. 821); Carson v. Cochran, 52 Minn. 67 (53 N.W. 1130); Duty v. Graham, 12 Tex. 427 (62 Am. Dec. 534); Hurley v. Cox, 9 Neb. 230 (2 N.W. 705); Hill v. Gregory, 64 Ark. 317 (42 S.W. 408); Law v. Spence, 5 Idaho 244 (48 P. 282);......
  • Rhodes v. Gibbs
    • United States
    • Supreme Court of Texas
    • 1 janvier 1873
    ...security for the payment of the debt, and if the debt is barred by limitation the creditor has no remedy on the mortgage. Duty v. Graham, 12 Tex. 427;Ross v. Mitchell, 28 Tex. 150;Perkins v. Sterne, 23 Tex. 561. So, if the note and petition do not show a cause of action against the wife; or......
  • Request a trial to view additional results
44 cases
  • Colonial & U.S. Mortg. Co. v. Nw. Thresher Co.
    • United States
    • United States State Supreme Court of North Dakota
    • 27 avril 1905
    ...those courts have assumed, as it was expressly declared in Schmucker v. Sibert, 18 Kan. 104, 109, 26 Am. Rep. 765, and in Duty v. Graham, 12 Tex. 427, 435, 436, 62 Am. Dec. 534, that, because the mortgage is an incident to the debt, therefore the remedy to enforce the lien was also a mere i......
  • Fitzgerald v. Flanagan
    • United States
    • Iowa Supreme Court
    • 10 avril 1912
    ...16 L. R. A. 646;Clift v. Williams, 105 Ky. 559, 49 S. W. 328, 51 S. W. 821;Carson v. Cochran, 51 Minn. 67, 53 N. W. 1130;Duty v. Graham, 12 Tex. 427, 62 Am. Dec. 534;Hurley v. Cox, 9 Neb. 230, 2 N. W. 705;Hill v. Gregory, 64 Ark. 317, 42 S. W. 408;Law v. Spence, 5 Idaho, 244, 48 Pac. 282;Ha......
  • Ed. Fitzgerald v. Flanagan
    • United States
    • United States State Supreme Court of Iowa
    • 10 avril 1912
    ...L. R. A. 646); Clift v. Williams, 105 Ky. 559 (49 S.W. 328, 51 S.W. 821); Carson v. Cochran, 52 Minn. 67 (53 N.W. 1130); Duty v. Graham, 12 Tex. 427 (62 Am. Dec. 534); Hurley v. Cox, 9 Neb. 230 (2 N.W. 705); Hill v. Gregory, 64 Ark. 317 (42 S.W. 408); Law v. Spence, 5 Idaho 244 (48 P. 282);......
  • Rhodes v. Gibbs
    • United States
    • Supreme Court of Texas
    • 1 janvier 1873
    ...security for the payment of the debt, and if the debt is barred by limitation the creditor has no remedy on the mortgage. Duty v. Graham, 12 Tex. 427;Ross v. Mitchell, 28 Tex. 150;Perkins v. Sterne, 23 Tex. 561. So, if the note and petition do not show a cause of action against the wife; or......
  • Request a trial to view additional results

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