Marsh v. Hubbard

• Decision Date: 01 January 1878
• Citation: 50 Tex. 203
• Parties: W. H. MARSH ET AL. v. R. B. HUBBARD.
• Court: Texas Supreme Court

50 Tex. 203

W. H. MARSH ET AL.

v.R. B. HUBBARD.

Supreme Court of Texas.

1878.

APPEAL from Smith. Tried below before the Hon. M. H Bonner.

January 15, 1877, R. B. Hubbard brought an action of trespass to try title in the ordinary form against W. H. Marsh and A. A. Letchworth for a house and lot in the town of Tyler. The defendants pleaded not guilty, and, by amendment, set out the facts constituting the claim to title by both parties.

March 13, 1878, the cause was tried. The testimony was, in substance, as follows:

Willis Roberts is the common source of title. Hubbard derived title as follows: On the 30th of August, 1873, Willis Roberts, with R. B. Hubbard as his surety, made a note payable to J. H. Burnett & Co. for $5,375.63, due the 1st of January, 1874. Roberts, to secure Hubbard against loss, gave him a deed of trust on the land in controversy, with power of sale, to be executed if Roberts did not pay said note at maturity, “whenever demand should be made on him (Hubbard) by J. H. Burnett & Co. for the payment of said note or any part thereof.”

The note was not paid, and J. H. Burnett & Co. demanded payment of Hubbard after its maturity.

On the first Tuesday in September, 1876, Hubbard, in pursuance of the power, sold the land and purchased it himself for $1,300. He had not yet paid J. H. Burnett & Co. anything on the note. On the 5th of September, 1876, he executed to himself a deed for the land, which was recorded 11th of January, 1877.

Marsh and Letchworth derived title through a deed from the sheriff of Smith county, made to them as purchasers of Willis Roberts' interest at a sale made by virtue of an execution issued on a Justice's Court judgment, against said Roberts, rendered in 1875.

The defendants were Roberts' tenants before said sale and have been in possession ever since.

The rental value was proved to be $12.50 per month.

Judgment was rendered for Hubbard for the lot sued for and $250 damages. Marsh and Letchworth appealed.

Sawnie Robertson, for appellants.

I A purchaser at a trustee's sale made for cash is not entitled to recover possession from the owner of the equity of redemption until the payment of the purchase-money.

In defendants' trial amendment it is alleged, substantially, that Willis Roberts and wife executed to R. B. Hubbard a deed of trust upon the land in controversy, to indemnify the said Hubbard as the surety of said Roberts upon a note due J. H. Burnett & Co; that the said Hubbard, without having paid anything upon the note, proceeded to foreclose the deed of trust, and at the sale became the purchaser for the sum of $1,300; that he never paid said sum, or any part thereof, either upon said note or to the said Roberts; and that defendants, subsequent to the execution of said deed of trust, but prior to the foreclosure thereof, became by purchase the owners of the equity of redemption in said property. The plaintiff's exceptions, filed to defendants' amended original answer, were urged against the said trial amendment, and were sustained by the court to the part referred to in both of said answers; to which ruling defendants excepted. (Wright v. Henderson, 12 Tex., 44;Gillian v. Henderson, 12 Tex., 48;James v. Jacques, 26 Tex., 320; Thruston v. Prentiss, 1 Mann., (Mich.,) 194; 2 Perry on Trusts, p. 167; Tankersley v. Anderson, 4 DeSaus., (S. C.,) 44; Mimms v. McDowell, 4 Ga., 182.)

II. The court erred in sustaining plaintiff's exceptions to defendants' plea of the statute of limitation of four years upon the note of Burnett & Co., against which, to indemnify the said plaintiff, the said mortgage to him was executed.

First proposition under the first assignment of errors: Any person whose property may be affected by the debt of another may plead the statute of limitations against that debt.

It was alleged in defendants' amended original answer that the debt due by Roberts and Hubbard to J. H. Burnett & Co. was barred by statute of limitation of four years; and in their trial amendment they plead said statute as a bar to plaintiff's right to further incumber the property in controversy. Plaintiff excepted to this plea, and his exception was sustained by the court. (Ang. on Lim., p. 353, and note.)

III. The proof introduced by plaintiff, showing that he had never paid anything upon the note due J. H. Burnett & Co., defeated the plaintiff's right to recover under the other facts in evidence.

Willis Roberts was the common source of title. He gave plaintiff a mortgage upon the land in controversy to indemnify him as his (Roberts') surety upon a certain note referred to therein, and authorizing him to foreclose by sale for cash, and pay whatever he might be required to pay upon the note and the balance to Willis Roberts. Hubbard's deed as trustee to Hubbard as purchaser was introduced, bearing date September 5, 1876. J. H. Burnett testified that he (plaintiff) had paid nothing upon the note of which J. H. Burnett & Co. were the payees and holders. (Wright v. Henderson, 12 Tex., 44;Gillian v. Henderson, 12 Tex., 48;James v. Jacques, 26 Tex., 320; Thruston v. Prentiss, 1 Mann., (Mich.,) 194; 2 Perry on Trusts, p. 167; Tankersley v. Anderson, 4 DeSaus., (S. C.,) 44; Mimms v. McDowell, 4 Ga., 182.)

Jones & Henry, for appellee.--Hubbard's right to sell arose when payment of the note was demanded of him by the payee after its maturity. The object of the power was to enable him to raise the money by sale of the property to pay the note when he was compelled to do so. He was not required to pay the purchase-money to Roberts, the mortgagor and holder of the note, but to hold the same for his own protection and indemnity in case he was compelled to pay the note.

Roberts was the common source of title. To indemnify...