Henry S. Miller Co. v. Wood

• Decision Date: 24 April 1979
• Docket Number: No. 8643,8643
• Citation: 584 S.W.2d 302
• Parties: HENRY S. MILLER COMPANY, Trustee, et al., Appellants, v. Harold WOOD et al. Appellees.
• Court: Texas Court of Appeals

Page 302

584 S.W.2d 302

HENRY S. MILLER COMPANY, Trustee, et al., Appellants, v. Harold WOOD et al. Appellees.

No. 8643.

Court of Civil Appeals of Texas, Texarkana.

April 24, 1979.

Rehearing Denied June 26, 1979.

Michael R. Cooper, Cooper, Hayner, Miller, Long & Owen, Dallas, Leo A. Kissner, Leo A. Kissner & Associates, Houston, for appellants.

Edmund R. Wood, Chancellor & Wood, Roger D. Bush, Dallas, for appellees.

RAY, Justice.

This is a suit to recover sums paid for delinquent taxes. Harold E. Wood and wife, Ruth K. Wood, and Warren B. Wood Miller Company and the members of the joint venture have perfected their appeal and submit three points of error for our consideration.

and wife, Ruth Ann Wood, (Wood), appellees (plaintiffs), brought suit against Henry S. Miller Company, Trustee (Miller Company), seeking recovery of certain ad valorem taxes which Wood had paid to various taxing agencies in Fort Bend County. Miller Company sought indemnification in its action against Dr. Bernard Waidhofer, Dr. Matthew D. Burnett, Dr. Ronald R. Novasad, Dr. Bill J. McDougal and Frederick James Gaido, Jr., a joint venture, for whom Miller Company had purchased the property from Wood. The trial court awarded Wood $4,460.00, plus interest, and costs against Miller Company and awarded indemnification in favor of Miller Company against the members of the joint venture. Wood had paid the ad valorem taxes after foreclosing under four deeds of trust upon the real property which had been given as security for the purchase price of the land by Miller Company for the joint venture. At the foreclosure sale, Wood purchased the land, paid the taxes which were later found to be delinquent, and then instituted suit for reimbursement of the moneys paid to the taxing authority. The case was tried to the court without the aid of a jury upon stipulated facts.

Appellants assert that the trial court erred in holding Miller Company and the members of the joint venture personally liable for the delinquent ad valorem taxes paid by Wood because the deeds of trust and notes expressly stated that appellants would have no personal liability in the event of default; that the amount expended for ad valorem taxes by mortgagees, Wood, became a part of the lien upon the land and no right to a personal judgment exists against the mortgagors; and, that Wood was not entitled to a right of subrogation in an in personam action for ad valorem tax payments because such right is limited to an in rem action only.

When Miller Company purchased the land from Wood, it executed notes and deeds of trust which respectively contained the following clauses:

"The maker of this note shall have no personal liability for the payment of this note, and in the event of default, the holder hereof shall have the mortgaged property alone as security for the payment of this note."

"Anything herein to the contrary notwithstanding, the undersigned shall have no personal liability for the payment of the note secured hereby, and in the event of default, the holder of said note shall have the mortgaged property alone as security for the payment of said note . . .".

Because of the non-payment of the notes, Wood accelerated and matured the notes on February 3, 1976, subsequently foreclosing under the deeds of trust and purchasing the property at the foreclosure sale. During 1975, Miller Company had failed to pay the school and state and county taxes.

Appellees' suit against Miller Company is based on a covenant in the deeds of trust which provides, in part, the following:

"THE UNDERSIGNED FURTHER COVENANT with said Trustee that it will at all times, during the continuance of this trust, . . . pay, before the same shall become delinquent, all taxes and assessments that may be levied or assessed against said premises or any part thereof. And it is especially agreed that if the undersigned shall fail . . . to pay such taxes, then the said . . . taxes may be paid by the legal holder of said note, and sums so expended shall be a demand obligation and become part of the debt hereby secured, and shall draw interest . . . or at the option of the holder of the debt secured hereby, the entire principal indebtedness may be declared due, and be collected in any manner provided in this instrument, or provided by law."

The case was presented on stipulated facts, but not strictly in compliance with the rule on an agreed case as provided by Tex.R.Civ.P. 263. Where, however, the parties stipulate all the facts of an action,

though not literally in compliance with the rule, the stipulation may be treated as a submission upon an agreed statement. 4 McDonald's, Texas Civil Practice, Sec. 16.03, p. 2 (1971); cf. Parsons v. Watley, 492 S.W.2d 61 (Tex.Civ.App. Eastland 1973, no writ), where the stipulations did not purport to contain all the facts and were not treated as an agreed statement by the court. If a case is submitted on an agreed statement of facts, the trial court and the reviewing court are limited to the agreed facts and cannot make any findings of fact not conforming to the agreed facts. Jay v. Devers, 563 S.W.2d 880, 881 (Tex.Civ.App. Eastland 1978, no writ). The trial judge, however, made findings that were in conformity with the stipulated facts.

SUBROGATION

A mortgagee who pays taxes in order to protect his interests in the mortgaged property is entitled to be subrogated to the lien...