Hamilton v. Federal Land Bank of Houston

• Decision Date: 26 January 1939
• Docket Number: No. 10756.,10756.
• Citation: 125 S.W.2d 1088
• Parties: HAMILTON et al. v. FEDERAL LAND BANK OF HOUSTON.
• Court: Texas Court of Appeals

125 S.W.2d 1088

HAMILTON et al. v. FEDERAL LAND BANK OF HOUSTON.

No. 10756.

Court of Civil Appeals of Texas. Galveston.

January 26, 1939.

Appellee's Motion for Rehearing Granted February 16, 1939.

Appellant's Motion for Rehearing Denied March 16, 1939.

Appeal from District Court, Harris County; Allen B. Hannay, Judge.

Suit by the Federal Land Bank of Houston against T. B. Hamilton and others on a note secured by a deed of trust, wherein defendants filed pleas of privilege and plaintiff filed controverting affidavits. The pleas were refused, and defendants appeal.

Judgment affirmed.

Williams, Lee, Sears & Kennerly, Jesse J. Lee, and W. H. Blades, all of Houston, for appellants.

Carl Runge and Chas. L. Terry, both of Houston, for appellee.

CODY, Justice.

This is a plea of privilege case.

Appellee brought suit against Myrtle E. Arnold, individually, and as survivor of the community of herself and deceased husband, C. L. Arnold, and against W. S. Connor and wife, Lorena, T. B. Hamilton, C. C. Kirk, and others not necessary to name. The petition alleged, among other things, that on May 31, 1922, W. S. Connor and wife executed and delivered to appellee their note for $2,900, and to secure its payment gave their deed of trust covering 322 acres of land, specifically described, in Sabine County; it also alleged the 322-acre tract was conveyed to C. L. Arnold on December 22, 1930, who, as a part of the consideration, assumed the payment of the aforesaid note. The death of Arnold, and subsequent appointment and qualification of Myrtle E. Arnold as community survivor, was also alleged; and it was further alleged that in consideration of release from personal liability on her part and that of the community estate, she conveyed the 322-acre tract to appellee; that the deed contained the stipulation that appellee reserved the right, in the event the superior title is not thereby conveyed to it, to foreclose its deed of trust lien. Default in payment of the note, etc., was alleged. The allegation with respect to the other defendants was that they claimed some right, title and interest in the property, but which was inferior to appellee's right to foreclose, etc.

Appellants filed pleas of privilege to be sued in the county of their residence, Sabine County. Appellee filed controverting affidavits, asserting the right to sue in Harris County under Subdivision 5 of Art. 1995, Vernon's Ann.Civ.St., because the suit was on a written note payable in Houston; and because, under Subdivision 29a of Art. 1995, Vernon's Ann.Civ.St., appellants are "necessary parties" to the foreclosure.

The facts are that W. S. Connor and wife gave the note and deed of trust sued on, and the deed of trust was duly recorded. Thereafter, on January 29, 1929, by deed duly recorded, Connor and wife conveyed to appellant Hamilton an undivided half interest in the oil, gas and other minerals under the 322 acres, and in this deed no reference is made to appellee's lien. About a year later, Connor and wife likewise conveyed an undivided 100-acre oil, gas and mineral interest in the tract to C. C. Kirk, and no reference is made in this deed to appellee's lien. Thereafter, the Connors conveyed the land to C. L. Arnold, who assumed payment of the note.

It should be added that all the defendants resided in Sabine County.

Under Subdivision 5 of Art. 1995, the makers of the note sued on and the defendants who assumed its payment, can be sued in Harris County. But appellants neither made the note nor assumed its payment; they merely bought their interest from the mortgagors, subject to the mortgage. If they are suable against their will in Harris County, it is by virtue of Subdivision 29a of Art. 1995: "Whenever there are two or more defendants in any suit brought in any county in this State and such suit is lawfully maintained therein under the provisions of Article 1995 as to any of such defendants, then such suit may be maintained in such county against any and all necessary parties thereto."

Those who have bought land subject to a mortgage, and hold it at the time suit is brought to foreclose the mortgage, are necessary parties to the foreclosure suit, as the term "necessary parties" is used in such connection. Buchanan v. Monroe, 22 Tex. 537; Lind v. Merchants' State Bank & Trust Co., Tex.Civ.App., 16 S.W.2d 385, and the cases therein cited. The Lind case is direct authority for holding that, under Subdivision 29a, appellants' plea of privilege should be overruled. But, as against the authority of the cited cases, the Commission of Appeals, speaking for the Supreme Court through Judge Harvey in First National Bank v. Pierce, 123 Tex. 186, 69...