Menard v. Sydnor

• Decision Date: 31 January 1867
• Citation: 29 Tex. 257
• Parties: ALFRED B. MENARD ET UX. v. JOHN S. SYDNOR.
• Court: Texas Supreme Court

29 Tex. 257

ALFRED B. MENARD ET UX.

v.JOHN S. SYDNOR.

Supreme Court of Texas.

January, 1867.

Where there is no such averment as would make the separate estate of the wife liable for the debt, it is error to render a money judgment against her on a joint contract with her husband. Pas. Dig. art. 4643, note 1052; 1 Tex. 481;21 Tex. 230;23 Tex. 625;24 Tex. 215;27 Tex. 96;28 Tex. 368.

A judgment must be warranted by the case made by the pleadings, and if it be against such case, it will be reversed. Pas. Dig. art. 1476, note 572.

Where the suit was upon a deed of trust, under which the plaintiff had the right to sell the land, first privately, and afterwards publicly, and to pay himself his debt, and to pay the defendants the balance, but if the sale did bring enough to pay the amount, then that lesser sum should be taken in satisfaction of the debt, the failure to sell did not enlarge the rights of the mortgagee, but he was bound by the whole terms of his contract.

As men bind themselves, so must they stand bound.

When the terms of a contract are free from ambiguity, and not such as are against the policy of the law to enforce, they establish the rights of the parties in the subject-matter, which will be protected and enforced by the courts.

ERROR from Harris. The case was tried before Hon. PETER W. GRAY, one of the district judges.

Sydnor sued Menard and wife, and, in hæc verba, set out a deed of trust or mortgage, with the power to sell their interest in the land conveyed within one year, at a price to be agreed upon by the grantors, so as to reimburse to himself $570 and interest thereon; but should not a sale be made within the year, and on these conditions, then Sydnor was to advertise and sell the land at public auction, and if the land should bring more than enough to satisfy the debt and interest, the overplus should be paid over to the mortgagors; but if it should bring less than the debt, then Sydnor should take the whole sum, and the debt should be considered as settled. The petition averred that the land was still unsold, and he prayed that the land be sold to satisfy the debt and for general relief. The defendants denied the allegations in the petition, and plead that Sydnor had not complied with his contract. There was judgment for the amount of the debt against the defendants, and a decree of foreclosure to sell the land, and that, should the proceeds of the sale be insufficient to satisfy the debt and costs, the plaintiff should have execution for the balance. The defendants prosecuted error, and assigned for error, that the judgment was not warranted by law, etc., etc. There were no bill of exceptions or statement of facts; so that the question turned upon the points, first, could there be a general judgment against the wife upon the contract? second, could the court substitute a new contract between the parties in lieu of the one which they had made for themselves?

James Masterson, for the plaintiffs in error. We take it, that where it clearly appears from the face of the petition that one of the makers was a married woman, and was at the time of its execution, there should be such averments as would bind her separate property, under the statute and the construction given it by our supreme court, or such averments as would bind her separate property in equity; and, in the absence of such averments, the court should refuse to enter a judgment against her, particularly a money judgment.

“A petition on a joint note against a husband and wife, which does not aver that the debt was contracted for the benefit of the wife's separate property, or any other fact that would authorize a judgment against her, presents no cause of action against the wife, and a judgment by default against her will be reversed.” Trimble v. Miller, 24 Tex. 215;Haynes v. Stovall, 23 Tex. 625.

But, aside from this, we submit that the court below erred in giving a money judgment against the defendants, or either of them, for this, that the petition seems to have been framed only with a view to have the deed of trust therein set out foreclosed. The suit is not upon a note, account, or in fact any money demand, and we submit whether the court below (had the jury found that there was any deed of trust) ought, under the allegations of the petition, to have done more than decree a foreclosure. Claiborne v. Tanner, 18 Tex. 68;May v. Taylor, 22 Tex. 349;Bledsoe v. Wills, 22 Tex. 650;McConkey v. Henderson, 24 Tex. 212.

The plaintiff below, by accepting the deed of trust sued upon, became bound by the terms and conditions of that instrument. The deed of trust provides, in express terms, “that in the event that the land therein described should sell for less than a sufficiency to pay said debt and interest, the said Sydnor is to receive the whole amount for which the land shall be sold, and the debt shall be considered settled.” We insist that the court erred in giving judgment of foreclosure in the manner provided by the statute for the foreclosure of mortgages.

No brief for the defendant in error has been furnished to the reporter.

COKE, J.

There is neither statement of facts nor bill of exceptions in this case. Giving the judgment the benefit of all the presumptions that can possibly arise...