Gregg v. Gregg

• Decision Date: 01 January 1870
• Parties: JOHN GREGG v. E. P. GREGG, ADMINISTRATOR, ETC.
• Court: Texas Supreme Court

33 Tex. 462

JOHN GREGG

v.E. P. GREGG, ADMINISTRATOR, ETC.

Supreme Court of Texas.

1870.

1. The last clause of the third section of the act of May 15, 1838 (Pas. Dig. art. 4985), which enacted that no mortgage should take lien unless recorded as thereinbefore provided, is unambiguous though improvident, and so long as it remained in force it must be considered as positive law; but so far as immediate parties to mortgages were concerned, it was repealed by the third section of the act of February 5, 1840 (Pas. Dig. art. 4986), and as to subsequent purchasers with notice, it was repealed by the fourth section of the act concerning conveyances. Pas. Dig. art. 4988.

APPEAL from Harrison. Tried below before the Hon. J. B. Williamson.

G. G. Gregg, the appellee's intestate, made four mortgages in the year 1867, on the same property. The appellant held the eldest of the four, and his was executed February 20, 1867. The second was to H. Y. Hall, on May 20, 1867; the third to J. Y. Collin, on July 19, 1867; and the last to W. W. Nesbit, on the second of August, 1867. None of them were filed for record until the twenty-ninth of October, 1867; on which day they were filed in the same order, with half an hour interval between them, the appellant's being the first and Nesbit's the last put on file for record. The contest was as to which should have first satisfaction out of the mortgaged property; and the court below decided in favor of the last one, Nesbit's, presumably on the ground that his was the only one recorded within ninety days from its execution, and that the act of May 15, 1838, was in force and governed the question.

S. G. Newton, for the appellant. Our legislation upon the subject of mortgages and their record as affecting this case, is embraced in the acts:

I. Of Third Session Acts Rep. Tex. p. 12, May 15, 1838, which is “An act to provide for the foreclosing of mortgages on real and personal estate,” and requires all mortgages to be recorded within ninety days from date, and enacts that “no mortgage shall take lien upon property mortgaged unless so recorded.” Pas. Dig. art. 4985.

II. Act Fourth Con. Rep. February 5, 1840. In Fourth Session Acts, p. 69, which is amendatory of the first named act, it is provided “that all mortgages shall be recorded as heretofore, but the lien created by the mortgage shall not be lost or destroyed as between the parties to it, if the mortgagor should fail to have it recorded within the time prescribed by law” (Pas. Dig. 4986); and that “all laws and parts of laws now in force in any wise contravening with the provisions of this act, be and the same are hereby repealed.”

Here I beg leave to call the attention of the court to the fact that Hartley, Oldham & White, and Paschal, have all, in their digests of the laws of Texas, substituted the word “mortgagee” for “mortgagor” above italicized, the latter being the correct word as printed in the session acts, and must be the correct reading.

III. Act Fourth Cong. Rep. Tex. p. 153, approved February 5, 1840, entitled ““An act concerning conveyances,” the latter part of the fourth section of which provides as follows: “And all deeds of trust and mortgages whatsoever, which shall hereafter be made and executed, shall be void as to all creditors and subsequent purchasers for valuable consideration, without notice, unless they shall be acknowledged, or proved and lodged with the clerk, to be recorded according to the direction of this act -- but the same as between the parties and their heirs, and as to all subsequent purchasers, with notice thereof, or without valuable consideration, shall nevertheless be valid and binding.”

With these references to the several laws, it is to be determined what was the law in force at the time of the execution of the mortgages. I apprehend it will not be contended that they are all alike in force, because their provisions are inconsistent and conflict with each other, in which case, we are told by all elementary writers and judicial opinions, that the last act must prevail. There does not seem to have been much judicial action by our courts upon the two first named laws. I find but one reference to the first by our supreme court, and none to the second; there may be others, but they have not come under my observation. I doubt their having been considered in force by the courts since 1840.

The reference alluded to is by Chief Justice Hemphill, in the case of Crosby v. Huston, 1 Tex. 239, and is in the shape of a query, as to what is the effect of the provision “that no mortgage shall take lien upon property mortgaged, unless so recorded, should a case arise under the law?” He does not answer the question, but in speaking of the enactment says: “The motives of the legislature can only be conjectured. It may perhaps have been supposed that the most effective mode of protecting the rights of third persons from secret mortgages, or incumbrances on property, would be to make them inoperative between the parties themselves until recorded.” Mathew Bacon says: “A statute can do no wrong; but it may do some things that seem very strange.” And so the next congress seemed to have thought, when they repealed this enactment and enacted the general law concerning conveyances, and provided the same protection to third and innocent parties contemplated by the first law, as supposed by the chief justice.

That the latter is the law governing the subject matter of mortgages and their record, is evident from the language of Justice Wheeler, in the case of Parks v. Willard, 1 Tex. 353, decided at the same term of the court at which Crosby v. Huston was determined. After quoting the statute, he says: “This provision is not regarded as introducing a new rule; but only as declaratory of the law, as recognized in the chancery jurisprudence of England and the United States. It is but the declaration of positive law, to the effect that the want of registration shall avoid the deed only as to creditors and subsequent purchasers without notice, but that as to subsequent purchasers, with notice thereof, the deed shall nevertheless be valid and binding.” If this be the law as to creditors with notice, it follows as a corollary that mortgagees with notice are alike affected.

The case of Givens v. Taylor, Hart & Co., 6 Tex., decided by Justice Lipscomb, sustains the same view. And so in the case of Mayfield and another v. Averitt's Administrator, 11 Tex. 140;and so in the case of Ponton v. Ballard, 24 Tex. 621; and so in the case of Martel v. Somers, 26 Tex. 558.

The case of Allen v. Atchinson, 26 Tex. 628, appears to me to be conclusive upon the point contended for; for the question was then directly before the court. An administrator was directed by the probate court to sell property of an estate and retain a lien upon it for the payment of the unpaid purchase money; this was done, and the sale confirmed; the property passed into the hands of third parties, and the administrator of Allen afterwards brought suit for the unpaid purchase money, and to enforce the lien upon the property. Defendants set up want of notice of the lien. To this it was replied that the orders of the probate court, requiring the lien to be retained, was notice; but in addition to this it was proved on the trial that Atchinson had actual notice when he purchased of the claim and lien of the administrator. There was no evidence of any record of the lien in the county clerk's office. It was held by the court that the record of the proceedings of the probate court was not notice of the lien, but that the party was affected by the actual notice given him, and used this language: “Notice of the lien upon the property, if one was retained, should have been given by having the instrument by which it was created, duly registered in the manner pointed out by the statute for the record of deeds and mortgages; and if this was not done, third parties could not be affected by such lien, unless they were notified of it, or were, from other facts, charged with notice of it.” In this case, as in that of Parks v. Willard,...