Mills v. Traylor

• Decision Date: 30 April 1867
• Citation: 30 Tex. 7
• Parties: JOHN T. MILLS ET AL. v. DUNSTAN TRAYLOR ET AL.
• Court: Texas Supreme Court

30 Tex. 7

JOHN T. MILLS ET AL.

v.DUNSTAN TRAYLOR ET AL.

Supreme Court of Texas.

April, 1867.

Neither prior nor subsequent incumbrancers, who are not parties to a proceeding to foreclose a mortgage, are bound by the decree. Pas. Dig. art. 4675, notes 1061, 536; 11 Tex. 547.

The facts in this case are similar to those decided in Darby v. Graham, 12 Tex. 427, and the same principle is decided. 12 Tex. 427;23 Tex. 561;25 Tex. 271.

If in any case the mortgagee, in an action of trespass to try title, may recover the lands mortgaged before foreclosure, it must be upon allegation and proof of such facts as would entitle him to a decree foreclosing the equity of redemption, and a refusal or neglect of the purchaser of the property to discharge the mortgage debt, after being advised of it.

Where a deed of trust recites that the beneficiary had paid certain debts as the grantor's surety, the amounts of which he would not give, and he authorized the trustee to sell to satisfy such as had been paid and should be presented to the grantor, and the trustee sold, but there was no proof that there really was any indebtedness, nor that the beneficiary had ever presented any claim as having been paid by him, there was no authority established to sell.

APPEAL from Titus. The case was tried before Hon. WILLIAM S. TODD, one of the district judges.

This suit was instituted by appellants, Mills, Ward & West, to recover one thousand seven hundred acres of land. Plea of not guilty filed by defendants.

The intervenor, Frances, claimed three hundred and twenty acres of the land in controversy out of that portion claimed by defendant, Traylor, to which plea of intervention Traylor demurred, plead the general issue, and not guilty.

Upon the trial of said cause, plaintiffs read the patent for the land to W. H. Vining, and mortgage from Vining to plaintiffs, recorded November, 1851, in Titus county; also a judgment of the district court of Red River county against the administrator of Vining, in favor of plaintiffs, for the debt secured by mortgage; also, a certified copy of proceedings in the county court of Red River county, by plaintiffs, against the administrator of Vining, to foreclose said mortgage, the order of sale under said mortgage, and the order of the said county court confirming said sale; also, a deed from the administrator of Vining to plaintiffs, under said sale, dated October, 1855.

Defendant, Traylor, read as evidence a deed from said Vining and wife for eight hundred and ninety-eight acres of said land, dated 18th December, 1853, recorded in Titus county on the 15th of January, 1854. Defendant, L. D. Stephens, read as evidence a deed for eight hundred and seventy-nine acres of said land from said Vining and wife, dated 30th September, 1853, and recorded in Titus county, 7th December, 1853, with the relinquishment of plaintiff, Ward, indorsed thereon, relinquishing to Stephens all rights to the land conveyed to said Stephens. It was admitted that defendants, Traylor and Stephens, went into possession of said lands soon after the date of their deeds.

Frances, intervenor, then read as evidence a deed of trust from said Vining to Amos Morrill, trustee, for three hundred and twenty acres of said land, to secure the payment of an amount that said Frances represented that he had been compelled to pay for said Vining, as his security as sheriff, in the state of Alabama, reciting that said Frances did not know what amount was then due him from said Vining, and that, if said Vining shall pay or cause to be paid to said Frances or Morrill all such claims as said Frances, as security, had been compelled to pay for said Vining, before the 18th of January, 1841, provided said claims be presented to said Vining for payment by said Frances or his attorney, then the said deed to be void, otherwise said Morrill was to sell said land, and apply the proceeds to the payment of said claims: said deed recorded June, 1842, in Red River county. Also, read a deed from Morrill, trustee of said three hundred and twenty acres of land, to said Frances, dated October 13, 1843, recorded in Titus county, 19th February, 1850. Said deed does not state that the provisions in said deed of trust were ever complied with in presenting the claims to said Vining before sale was made under the same. Morrill, witness for Frances, testifies that he made the sale, but does not recollect whether the proviso aforesaid was complied with in said sale, but supposed he incorporated all that was done in executing the trust in his deed to Frances. And J. C. Hart testified that he heard Vining say, after the date of the deed to Frances, that he was indebted to Frances, and that he had conveyed the land to secure the payment of the same.

There were verdict and judgment for defendants; motion for new trial overruled; and plaintiffs and intervenor gave notice of appeal. The appellants assign for error: First, the court erred in its charge to the jury; second, the verdict is contrary to the evidence.

The charge of the court is substantially this: That the trustee, in his deed to Frances, did not recite fully that he had complied with the provisions of the deed of trust, and therefore Frances must show by other evidence that the trustee did fully comply. If the statement in the charge is correct, that the trustee did not fully comply with the deed of trust in the execution thereof, then the charge is clearly correct. The deed of trust requires, that whatever claims Frances might find to be due him should first be presented to Vining for...