Morrison v. Bean
| Decision Date | 01 January 1855 |
| Citation | 15 Tex. 267 |
| Parties | WESLEY MORRISON v. AARON H. BEAN. |
| Court | Texas Supreme Court |
Where the plaintiff sues for judgment on a note and a foreclosure of a mortgage made to secure its payment, the defendant may demur to the prayer for foreclosure on grounds apparent in the petition; and where this was done and the entry was that the demurrer was overruled, and, the case being submitted without a jury, judgment was rendered in favor of the plaintiff, except in the particular of the foreclosure objected to by the demurrer, it was considered that the demurrer was, in so far, virtually sustained.
The fact that the mortgage embraces a species of property not subject to foreclosure by sale under judicial process, and that all is embraced under the same prayer for foreclosure, is no reason why the property which is not exempted should not be sold in satisfaction of the decree.
The fact that a mortgage contains a power to sell is no objection to a suit on the note or to a prayer for foreclosure of the mortgage.
Error from Gonzales.
Stewart & Mills and J. Ireland, for plaintiff in error.
Waul & Wilson, for defendant in error.
Suit on a promissory note executed by Wesley Morrison, the plaintiff in error, to J. R. Wintry, and by him transferred to Aaron H. Bean, the defendant in error. The note was secured by a mortgage executed by Morrison and his wife Adelia, embracing a tract of land which included their homestead and also several slaves. The foreclosure of the mortgage was prayed, and citation was served upon Morrison and wife, and upon Wintry.
The defendant demurred on the special ground:
1st. That the petition sought to foreclose a mortgage upon the homestead tract of land; and
2d. That the mortgage vested in the mortgagee a power of sale, and might have been foreclosed without the vexation and expense of a judicial proceeding.
It would appear from the bill of exceptions that the demurrer was overruled, but the entry of the judgment shows that it was overruled only in part, and from the fact that there was no order to sell the lands, we must presume that the demurrer was sustained as to the prayer for the sale of the homestead, and overruled as to other matters in the petition.
The cause was submitted to the court and there was judgment against Morrison and Wintry for the amount of the note and interest, and a decree that the slaves included in the mortgage be sold in satisfaction of the judgment and that an execution issue as in ordinary cases.
Five grounds were assigned for error, which, in effect, were but a reiteration of the causes of demurrer, with the addition that it was error to enter final judgment on the demurrer, without the intervention of a jury.
As to the first ground, viz.: that it was error to sustain the demurrer in part and overrule it as to the other matters in the petition, it is only necessary to say that such is believed to have been...
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Turner v. Southern Home Bldg. & Loan Ass'n.
...to enforce the payment of its claim, it would proceed summarily to sell the property, or invoke the aid of a court of equity. Morrison v. Bean, 15 Tex. 267; Morgan's L. T.R. & S.S. Co. v. Texas Cent. Ry. Co., 137 U.S. 171, 11 Sup.Ct. 61, 34 L.Ed. 625; Guaranty Trust & Safe-Deposit Co. v. Gr......
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Dupee v. Rose
...Eaton v. Whiting, 3 Pick. 484; Insurance Co. v. White, 106 Ill. 67, Woodruff v. Robb, 19 Ohio 212; Webb v. Hoselton, 4 Neb. 308; Morrison v. Bean, 15 Tex. 267; Bank v. Chapelle, 40 Mich. 447. Counsel respondent has cited us to the case of Koch v. Briggs, 14 Cal. 256. This case appears to su......