Howards v. Davis

• Decision Date: 01 January 1851
• Parties: THE HOWARDS v. DAVIS.
• Court: Texas Supreme Court

6 Tex. 174

THE HOWARDS

v.DAVIS.

Supreme Court of Texas.

1851.

Where property was conveyed to a trustee for the benefit of a married woman and her children, the married woman giving her promissory notes for the purchase-money, and the trustee executing a mortgage to the vendor to secure the payment of the notes, reciting that they were given for the purchase of the land: Held, That the whole was to be considered as one transaction, and that the rights of the parties were the same as if there had been but one instrument, in which all had joined.

Until payment, the vendor has the best right, the superior title; if the contract is executory, on default of payment he may consider the purchase abandoned and treat and hold the property as his own, and as possessing the entire interest; if the contract is executed, he has a lien for the purchase-money without a mortgage; if, however, a mortgage be simultaneously taken, where the contract is executed he in effect holds the estate in his previous right, subject to be divested on payment, or subject to such relief to the vendee as may be afforded under the special terms of the contract or under judicial proceedings instituted to forclose the mortgage. (Note 26.)

Where property was conveyed to a trustee for the benefit of a married woman and her children by her then husband, the married woman giving her promissory notes for the purchase-money, and the trustee executing a mortgage to the vendor with power to sell in case of failure of payment; the payment not being made, the vendor sold the property under the power in the mortgage; the married woman and her children claiming the land, the purchaser at the last sale sued them to quiet this title: Held, That the representatives of the husband were not necessary parties, and that there was no necessity for the appointment of another trustee, the former being dead.

A mortgagee with a power to sell may purchase at his own sale or procure another to purchase for him; and if there be no circumstance indicating unfairness, fraud, or an attempt to stifle competition, so as to secure the land at a price below its value, the sale cannot be impeached. (Note 27.)

If a defendant in a suit to quiet title disclaims any title to the property, and the plaintiff fails to prove any pretensions of claim before suit brought, the plaintiff has no cause of action. But where the defendant sets up a claim to the property, in his answer it is unnecessary for the plaintiff to prove previous pretensions.

Parol evidence is admissible to show, notwithstanding the usual acknowledgment of the receipt of the purchase-money in a deed, that the purchase-money was not paid; and where the deed was made to a trustee, the cestui que trust giving her notes for the purchase-money and the trustee executing a mortgage to secure their payment, all by different instruments, parol evidence was admitted to connect them and show that they all constituted one transaction. (Note 28.)

Error from Galveston. The defendant in error, who was plaintiff in the court below, brought this suit to quiet his title to a tract of land described in the petition. The petition alleged that the land had originally been sold and conveyed by the plaintiff to one John D. Harvey, to be held in trust for the use and benefit of Elizabeth G. Howard, wife of Taliafero T. Howard, and such children as she then had or might thereafter have by the said Taliafero T. Howard, and who were the plaintiffs in this writ of error; that simultaneously with this conveyance the said John D. Harvey executed a mortgage or trust deed of the land, to secure the payment of three several notes of hand given by the said Elizabeth G. Howard for the purchase-money; and that in the event of failure by the said Elizabeth G. to pay the notes when they severally fell due, the plaintiff was authorized to re-enter upon and sell the lands at public sale, after giving sixty days' notice, &c.; that the notes or first of them not being paid at maturity, sale of the lands was made, and one John D. Claiborne became the purchaser for the benefit of the plaintiff, and subsequently reconveyed the land to him; that afterwards the said Elizabeth G. and her husband Taliafero T. Howard determined to abandon the contract for the purchase of the land, and that finally it was arranged that the plaintiff should surrender the notes, and that the said sale and notes should be canceled; and that this arrangement was made between the petitioner, and Taliafero and Elizabeth his wife with the consent of John D. Harvey, the said trustee; that there was no reconveyance except through the transfers made under the sale by virtue of the power in the deed of mortgage; that the deed of conveyance to Harvey as a trustee, the mortgage executed by him to secure the payment of the promissory notes, and the promissory notes, were all parts and parcels of the same transaction, yet the defendant, imagining that by the delivery up of the promissory notes they had a legal advantage, against equity and without conscience pretended to claim the said premises, and by their pretended claim occasioned a cloud to hang over his title; that they intended as he believed to bring a suit at some future day.

The petitioner prayed that the defendants might be decreed to have nothing in the premises, and that they might be estopped from setting up any claim thereto; that the title might be decreed to be in the petitioner; and that he might be quieted in his possession.

Elizabeth G. Howard was appointed guardian ad litem to the infant defendants.

The defendants demurred to the petition, and for special causes of demurrer--

1st. That the representatives of Taliafero Howard should have been a party.

2d. That a trustee should have been appointed in the place of Harvey, deceased, and should have been made a party.

3d. That it did not appear that the parties had any authority to cancel the conveyance.

4th. That no cancellation in writing was alleged.

5th. That the purchase of the property at the trust sale by Claiborne for the use of the plaintiff was illegal and void.

In case the demurrer was overruled, the defendants answered--

1st. That the recital of the receipt of the purchase-money in the deed of conveyance estopped the plaintiff from denying its payment.

2d. They admitted the execution of the deed to Harvey; alleged Harvey was dead; and that they were ignorant of the execution of any mortgage or deed of trust from Harvey to the plaintiff.

3d. That the plaintiff was estopped by the deed of conveyance from contending that Harvey had any power to make any such mortgage or deed of trust as that set forth in the plaintiff's petition.

4th. The defendants denied all the allegations of the petition not herein expressly admitted.

The demurrer was overruled and the case was submitted to the court without a jury. The defendants took a bill of exceptions, which embraced all the testimony, and recited that the defendants excepted to all of it except the conveyances from the plaintiff to Harvey, from Harvey to the plaintiff, from the plaintiff to Claiborne, and from Claiborne to the plaintiff.

The plaintiff proved that his deed of conveyance to the trustee, Harvey, and the mortgage by the said Harvey were executed at the same time, and as part and parcels of one transaction; that the three promissory notes executed by the said Elizabeth G. Howard formed and constituted the only consideration for the sale of the land; that the husband and wife entered into and continued the possession until December, 1843, when the notes being unpaid, the land was advertised and sold in conformity with the directions prescribed for that purpose in the mortgage; that the land was purchased at the sale for the benefit of the plaintiff for two thousand two hundred dollars, this being the highest and best bid, and more than any one else would give for the premises; that subsequent to the sale Taliafero Howard and Elizabeth his wife, with a full knowledge of the facts, finding they were unable to pay for the land, proposed to cancel the contract; that the amount of purchase-money which had been paid should be considered as rent; that they would deliver quiet and peaceable possession of the premises to the plaintiff, and that the plaintiff should deliver up the notes of the Elizabeth G., and that the sale should be canceled; that they did deliver up the quiet and peaceable possession of the premises, and he had continued to hold the same since December, 1843; and that, with the consent of the husband and wife, the trustee and the plaintiff, the sale was canceled, but there was no reconveyance, except such as was effected under the sale by virtue of the power in the mortgage; that the original contract or agreement for the sale was made by and between the plaintiff and Taliafero Howard; and that the deed of conveyance, mortgage, and promissory notes were executed to carry the sale into effect and to secure the purchase-money. The defendants did not introduce any evidence.

The decree, after reciting the appearance of the defendants, Elizabeth G. and William Howard, and also the appearance of the minor defendants, by their duly appointed guardian ad litem, and the appearance of the plaintiff by attorney, proceeded to overrule the demurrer, and, on the evidence, adjudged the legal and equitable title in the premises to be and to have been at and before the institution of the suit in the plaintiff; that he be quieted in his possession; that all clouds hanging over his title by reason of the claim of the defendants be removed.

The plaintiffs in error assigned for error: 1st. That the court below erred in overruling the demurrer of the defendants, because--

1. The legal estate in the premises having rested in John D. Harvey, trustee for the use of the defendants, the representative of said Harvey should have been made a defendant, (he being dead,) or another trustee should have been appointed...