Fievel v. Zuber

CourtSupreme Court of Texas
Writing for the CourtGaines
Citation3 S.W. 273
Decision Date28 January 1887
PartiesFIEVEL <I>v.</I> ZUBER.
3 S.W. 273
FIEVEL
v.
ZUBER.
Supreme Court of Texas.
January 28, 1887.

Appeal from Galveston county.

McLemore & Campbell, for appellant. Ballinger, Mott & Tery, for appellee.

GAINES, J.


On the fifteenth day of June, 1874, Eliza H. Wakeman sold the N. ½ of the N. E. ¼ of lot 43, in the city of Galveston, to one Lawson, for $3,000. The sum of $1,000 was paid at the time of the transaction, and two notes were given for the balance, each for $1,000, and bearing 10 per cent. interest, payable, respectively, at one and two years after date. The notes were secured by a deed in trust upon the lot conveyed, executed to one R. A. Brown, as trustee, at the time of the sale, and authorized him, in case of default in payment of either of them, to sell the property at public sale in order to satisfy the debt. The first note was paid. When the second sums fell due, the interest was paid, and an extension of 12 months was given. Before the maturity of this note, however, appellee, Zuber, loaned Lawson $7,000, and took a deed in trust from him on the east half of the lot to secure the debt; and in March, 1880, Lawson and wife conveyed to Zuber the premises so mortgaged in satisfaction of the loan. Lawson's note to Miss Wakeman was sent to Ball, Hutchings & Co. for collection, and, when the 12-months extension had run out, was, at the request of Lawson, made to R. A. Brown, taken up by the firm of which the latter was a member, Lawson promising to arrange to pay it in a few days. The note was held by this firm until it was paid by money furnished by Kaufman & Runge for that purpose. This occurred some seven or eight days after Brown took up the note. There is evidence tending to show that, when Kaufman & Runge agreed to let Lawson have the money, he promised that they should hold the note as security. On the fifteenth day of December, 1879, Lawson indorsed a new promise upon the

Page 274

note sufficient to postpone the bar of limitation, so far as he was concerned. On March 10, 1881, the note being unpaid, Brown was requested by Kaufman & Runge to sell the property under the deed of trust to pay the debt, but declined to do so. The deed of trust having provided for such a contingency, Kaufman & Runge appointed one Ruhl substitute trustee, who immediately advertised the entire mortgaged property, and sold it on the twenty-ninth day of the same month. At this sale appellant, Fievel, became the purchaser, and shortly after obtained possession of the premises. Zuber brought suit, and obtained a verdict and judgment in the court below, and Fievel now appeals.

The court below charged the jury, in substance, that, after the deed in trust upon the lot was executed to Austin to secure Zuber's debt, Lawson could not affect the latter's rights by making a new promise, and that, if the note to Miss Wakeman was barred by the lapse of four years from its maturity, the sale from Ruhl, trustee, to Fievel passed no title. This charge of the court is assigned as error. The latter proposition is in accordance with the latest decision of this court upon the question at the time the charge was given. Blackwell v. Barnett, 52 Tex. 331. But in the more recent case of Goldfrank v. Young, 64 Tex. 432, that decision was overruled, and it was held that the power to make a sale under a deed of trust could be executed although the right of action in the courts upon the debts secured by it was barred by the statute of limitations. In that case the controversy was between the original parties to the transaction. In this the rights of a third party as a purchaser have intervened. But we are of opinion that, as a matter of substantial justice, there is no difference between the two. Any one has the right to purchase the equity of redemption in mortgaged property, or, to express it in a manner more in accord with the doctrine of our courts, he has the right to purchase the property subject to the mortgage debt. And it may be admitted that neither the mortgagor or mortgagee, after the purchase, can do any act prejudicial to his interest. But it cannot be conceded that a vendee of an estate with notice of an existing...

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83 practice notes
  • County of Audrain et al. v. Walker et al., No. 25296.
    • United States
    • Court of Appeal of Missouri (US)
    • October 31, 1941
    ...It is true that subrogation may accrue on an agreement between a volunteer and a debtor as held in Fievel v. Zuber, 67 Tex. 275, 3 S.W. 273, and other authorities cited by the Court of Civil Appeals. However, these authorities do not have application here, for the reason that Bradshaw had n......
  • Davidson v. F.D.I.C., No. 93-8335
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • January 25, 1995
    ...in 1887 the Texas Supreme Court drew a short-lived distinction between judicial and nonjudicial foreclosures. Fievel v. Zuber, 67 Tex. 275, 3 S.W. 273 (1887). In Fievel, the court held that a nonjudicial foreclosure under a power of sale, unlike a judicial foreclosure, could be exercised af......
  • Shoshoni Lumber Co. v. Fidelity & Deposit Co. of Maryland, 1801
    • United States
    • United States State Supreme Court of Wyoming
    • August 29, 1933
    ...it and Lanier that it should be subrogated to all his rights, acquired Lanier's right to perfect the lien. Fievel v. Zuber, 67 Tex. 275, 3 S.W. 273; 25 R. C. L. 1374. We are of the opinion that the bank as the assignee of Lanier had the right to perfect the lien by filing the claim with the......
  • Fitzgerald v. Flanagan
    • United States
    • Iowa Supreme Court
    • April 10, 1912
    ...14 R. I. 277; Dearman v. Trimmier, 26 S. C. 506, 2 S. E. 501;Irvine v. Shrum, 97 Tenn. 259, 36 S. W. 1089;Fievel v. Zuber, 67 Tex. 275, 3 S. W. 273; Criss v. Criss, 28 W. Va. 388; Cerney v. Pawlot, 66 Wis. 262, 28 N. W. 183;Ball v. Wyeth, 8 Allen (Mass.) 275;Damon v. Deeves, 57 Mich. 247, 2......
  • Request a trial to view additional results
83 cases
  • County of Audrain et al. v. Walker et al., No. 25296.
    • United States
    • Court of Appeal of Missouri (US)
    • October 31, 1941
    ...It is true that subrogation may accrue on an agreement between a volunteer and a debtor as held in Fievel v. Zuber, 67 Tex. 275, 3 S.W. 273, and other authorities cited by the Court of Civil Appeals. However, these authorities do not have application here, for the reason that Bradshaw had n......
  • Davidson v. F.D.I.C., No. 93-8335
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • January 25, 1995
    ...in 1887 the Texas Supreme Court drew a short-lived distinction between judicial and nonjudicial foreclosures. Fievel v. Zuber, 67 Tex. 275, 3 S.W. 273 (1887). In Fievel, the court held that a nonjudicial foreclosure under a power of sale, unlike a judicial foreclosure, could be exercised af......
  • Shoshoni Lumber Co. v. Fidelity & Deposit Co. of Maryland, 1801
    • United States
    • United States State Supreme Court of Wyoming
    • August 29, 1933
    ...it and Lanier that it should be subrogated to all his rights, acquired Lanier's right to perfect the lien. Fievel v. Zuber, 67 Tex. 275, 3 S.W. 273; 25 R. C. L. 1374. We are of the opinion that the bank as the assignee of Lanier had the right to perfect the lien by filing the claim with the......
  • Fitzgerald v. Flanagan
    • United States
    • Iowa Supreme Court
    • April 10, 1912
    ...14 R. I. 277; Dearman v. Trimmier, 26 S. C. 506, 2 S. E. 501;Irvine v. Shrum, 97 Tenn. 259, 36 S. W. 1089;Fievel v. Zuber, 67 Tex. 275, 3 S. W. 273; Criss v. Criss, 28 W. Va. 388; Cerney v. Pawlot, 66 Wis. 262, 28 N. W. 183;Ball v. Wyeth, 8 Allen (Mass.) 275;Damon v. Deeves, 57 Mich. 247, 2......
  • Request a trial to view additional results

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