Gunter v. Texas Land & Mortg. Co.

• Decision Date: 11 December 1891
• Citation: 17 S.W. 840
• Parties: GUNTER v. TEXAS LAND & MORTG. CO., Limited.
• Court: Texas Supreme Court

17 S.W. 840

GUNTER v. TEXAS LAND & MORTG. CO., Limited.

Supreme Court of Texas.

December 11, 1891.

Appeal from district court, Ellis county; ANSON RAINEY, Judge. Affirmed.

Action by the Texas Land & Mortgage Company, Limited, against Jot Gunter for foreclosure of a mortgage. Judgment for plaintiff, and defendant appeals.

Linus M. Dabney, for appellant. Robertson & Coke, for appellee.

STAYTON, C. J.

This is an agreed case, and so much as is necessary to be stated is as follows: "Appellee brought this suit in the district court of Ellis county, and its petition alleged the following facts: That plaintiff is a foreign corporation, incorporated under the laws of the kingdom of Great Britain and Ireland, with its principal office in the city of London, England, but doing business in the state of Texas, and having an office in Dallas county, in said state; that the business authorized by plaintiff's articles of incorporation, and the business done by plaintiff, is the loaning of money, and taking as security for its payment, mortgages, and trust-deeds upon real estate; that on August 13, 1889, plaintiff filed its said articles of incorporation with the secretary of state of the state of Texas, and paid the said secretary of state, as consideration for the right to carry on its said business in the state of Texas for the period of ten years from the date above named, the sum of two hundred dollars; that the contract so made with the state is evidenced by the following certificate, to-wit: `No. 66. The State of Texas, Department of State. This is to certify that the Texas Land & Mortgage Company, Limited, incorporated under the laws of England, for the purpose of loaning money, taking mortgages and liens to secure the payment thereof, and any other business incidental or necessary thereto, with authorized capital stock of $2,500,000, has this day filed in this department a certified copy of its articles of incorporation, in accordance with the requirements of an act of the twenty-first legislature of the state of Texas, approved April 3d, 1889; and I further certify that said corporation has this day paid $200.00, the amount of fee prescribed by said act; and I hereby declare that said corporation, having fully complied with the law, is entitled to and is hereby granted permission to carry on its business in this state, in accordance with the provisions of said act of April 3d, 1889, for the period of ten years from the date hereof, in accordance with the purpose herein specified. Witness my official signature and the seal of state affixed, at the city of Austin, the 13th day of August, 1889. [L. S.] [Signed] J. M. MOORE, Secretary of State.' That on July 30, 1891, the plaintiff loaned the defendant the sum of $550, in consideration of which the defendant then and there made his note of that date for said amount, payable to the order of plaintiff 15 days after the date thereof, with 10 per cent. per annum from date, and 10 per cent. attorney's fees in addition in case of suit upon said note, and delivered said note to plaintiff, and, on the same date, for value, executed and delivered to plaintiff a trust-deed conveying to Henry C. Coke, a citizen of Texas, as trustee, the following property, to-wit: Those certain lots or tracts of land described as follows, to-wit: Lying and being situated in the city of Dallas, Dallas county, Texas, and known as lots No. 7 and 8, in block R, of Simpson & Clark's addition to the city of Dallas, known also as block No. 584 of Murphy & Bolanz's official map of Dallas, to secure the prompt payment of aforesaid note. Said trust-deed was in form a conveyance of aforesaid property to said trustee, with covenants of general warranty, and contained the usual stipulations and power of sale upon default of payment of the debt secured, and the conditions and clauses of defeasance usual and common in such instruments; that, when said debt became due, the defendant failed and refused to pay the same, or any part thereof, but wholly made default; and that said debt remained wholly unpaid at the institution of said suit, and still is wholly unpaid. Plaintiff asks for judgment against said defendant for its said debt, interest, attorney's fees, and costs, and for foreclosure of the lien of said trust-deed on the above-described premises. The defendant appeared, and, answering said petition, admitted the truth of the facts pleaded, but excepted specially to said petition, as follows: (1) To so much of said petition as set up aforesaid permit as a contract between the state and plaintiff, because said permit was not a contract, but a revocable license, which conferred no right on plaintiff that the state could not take away by statute. (2) To so much of said petition as sought a foreclosure of the lien of aforesaid trust-deed on the premises above described, because said deed having been made to secure the payment of money to a foreign corporation on land in Texas, under the act of the legislature of Texas approved April 13, 1891, created no lien and was void. The case was properly and regularly reached and called for trial, and was submitted to the court; whereupon the court overruled above exceptions, and rendered judgment for plaintiff for six hundred and sixteen dollars, the amount due on said note of said date, with foreclosure of the lien of said trust-deed on aforesaid premises; to which ruling of the court defendant duly excepted, and in open court gave notice of appeal. No questions are involved in the appeal except the following: (1) Is the permit above set out a contract between plaintiff and the state, the obligation of which the state cannot impair by subsequent legislation? (2) Does the act of the legislature of April 13, 1891, prohibiting alien ownership of lands in Texas, affect the validity of aforesaid trust-deed, and is the said judgment of foreclosure entered in this case erroneous by reason of anything in said act contained? And, should it be held by the supreme court that said act of April 13, 1891, affected the validity of aforesaid trust-deed, and made it erroneous for the court to enter judgment foreclosing the lien of said deed, and the aforesaid permit from the state to plaintiff was not a contract, the obligation of which was impaired by said act of the legislature, then it is agreed that the judgment in this case shall be reformed by the supreme court so as to stand simply as a judgment for money; otherwise it shall be affirmed."

If the act of April 13, 1891, be invalid, it is unnecessary to consider whether the permit to appellee to do business in this state was revocable, as is it to determine whether, within the meaning of that act, a mortgage deed conveys title or interest in land. It is claimed on one side, and denied by the other, that the act is void. The constitution provides that no bill (except appropriation bills, which may embrace the various subjects and accounts for and on account of which moneys are appropriated) shall contain more than one subject, which shall be expressed in its title. Const. art. 3, § 35. The only exception to this rule thus declared is found in article 3, § 43, of the constitution, which declares that "the first session of the legislature under this constitution shall provide for revising, digesting, and publishing the laws, civil and criminal; and a like revision, digest, and publication may be made every two years thereafter: provided that, in the adoption of and giving effect to any such digest or revision, the legislature shall not be limited by sections 35 and 36 of this article." In pursuance of this article, the sixteenth legislature, at its regular session, passed an act entitled "An act to adopt and establish the ...