Morrow v. Morgan

• Decision Date: 01 January 1877
• Citation: 48 Tex. 304
• Parties: THOMAS MORROW v. HENRY M. MORGAN ET AL.
• Court: Texas Supreme Court

48 Tex. 304

THOMAS MORROW

v.HENRY M. MORGAN ET AL.

Supreme Court of Texas.

1877.

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

The case is fully stated in the opinion.

A. P. Shuford, for appellant, cited and discussed Adams' Eq., secs. 111, 115; Duty v. Graham, 12 Tex., 427;Buchanan v. Monroe, 22 Tex., 537;Hall v. Hall, 11 Tex., 547;Mills v. Traylor, 30 Tex., 7;Perkins v. Sterne, 23 Tex., 561;Wright v. Henderson, 12 Tex., 44;Floyd a. Borland, 33 Tex., 777;Lockhart v. Ward, 45 Tex., 227;Laird v. Winters, 27 Tex., 440;Allison v. Shilling, 27 Tex., 451; Story's Eq. Pl., 153; Byler v. Johnson, 45 Tex., 509;Mann v. Falcon, 25 Tex., 272;Foster v. Wells, 4 Tex., 104.

J. J. Hill, also for appellant.

Hart & Buchanan, for appellees.--The judgment in the court below, in this cause, does not conclude any right which appellant may have to the land in controversy; nor is it insisted that it should. But the judgment below should be affirmed, because the evidence in the case clearly discloses the fact, that while appellant may have the right of property in, or the naked title to, the land in controversy, yet he is not entitled to the possession thereof. By reference to the second volume of Story's Equity Jurisprudence, section 1017, it will be seen that the rule there laid down, is that the mortgagor, unless there be some specia?? agreement to that effect, is not entitled of right to the possession of the land mortgaged, but that the mortgagee has the right at any time to take possession, and retain the same until the mortgage is satisfied. This rule, however, has been reversed by our Supreme Court; and in Duty v. Graham, 12 Tex., 433, it is said that “the mortgagor, if he have the superior right or title, should be entitled to the possession, unless there was some special stipulation to the contrary.”

It will be observed, that in the mortgage from S. R. Smith, appellant's vendor, to Isaac McGary, it is specially stipulated that the mortgagor should retain possession of the mortgaged premises, free of rent, until the 1st day of January, 1863; thereby clearly implying that the mortgagee should take possession of the same after that time. Had the mortgage itself been silent upon the subject of possession and rent, then, by law, the mortgagor would have been entitled to possession free of rent; but as the mortgage expressly provides that the mortgagor should retain both possession and the rents until January 1, 1863, the law presumes that the parties intended to exclude what would otherwise have been implied; and that the possession of the land and the rents should be given to the mortgagee, McGary, after said 1st day of January, 1863. In 2 Parsons on Contracts, page 28, it is there said, that “A mortgage, by law, passes all the fixtures of shops, foundries, and the like, on the land mortgaged; but if the instrument enumerates a part, without words distinctly referring to the residue, or requiring a construction which would embrace the residue, no fixtures pass but those enumerated.”

The appellant having purchased the land in controversy from S. R. Smith after the execution and recording of the mortgage above mentioned, thereby acquired all the rights, and none other, (see Buchanan v. Monroe, 22 Tex., 542,) which his vendor (Smith) had, which was the equity of redemption, without the right of possession under the terms of the mortgage. And as, in an action of trespass to try title, plaintiff must recover upon the strength of his own title, and as both the right of property and the right of possession must concur in the plaintiff to entitle him to maintain said action, (see Hannay v. Thompson, 14 Tex., 145,) therefore, unless the evidence in this case shows that appellant is entitled to the possession of the land, then he cannot maintain his action. The evidence in this case shows that appellees have paid off the incumbrance upon said land under said mortgage, and have thereby acquired the rights of McGary, the mortgagee, including that of possession. It is, therefore, submitted, that before appellant can maintain an action of trespass to try title for said land against appellees, he must first pay back the money paid by appellees for his benefit. (Hannay v. Thompson, 14 Tex., 145.)

GOULD, ASSOCIATE JUSTICE.

Thomas H. Morrow brought this action of trespass to try title, claiming 1,600 acres of land under a deed from S. R. Smith, of date August 8, 1870, and duly recorded January 23, 1871. The defendants, Henry M. Morgan and others, claimed under a mortgage from S. R. Smith to Isaac McGary, of date February 8, 1861, duly recorded in May of that year, and as purchasers at a judicial sale, in March, 1874, under a decree of foreclosure, rendered in the District Court of Walker county December 2, 1871, in a suit against the mortgagor, but to which Morrow was not a party.

The cause was tried without a jury, resulting in a judgment in favor of defendants, which judgment, however, expresses that it is not to prejudice the ultimate rights of the plaintiff. Embodied in the judgment, we find an opinion of the presiding judge, holding, in substance, that Morrow's title was not affected by a decree of foreclosure to which he was not a party, but that the purchasers at the foreclosure sale were...