Pioneer Building & Loan Ass'n v. Gray

• Decision Date: 01 March 1939
• Docket Number: No. 2203-7254.,2203-7254.
• Citation: 125 S.W.2d 284
• Parties: PIONEER BUILDING & LOAN ASS'N v. GRAY et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Supreme Court

125 S.W.2d 284

PIONEER BUILDING & LOAN ASS'N v. GRAY et al.^*

No. 2203-7254.

Commission of Appeals of Texas, Section A.

March 1, 1939.

Certified Question from Court of Civil Appeals of Tenth Supreme Judicial District.

Action by the Pioneer Building & Loan Association against S. E. Gray and another to foreclose the lien of a trust deed securing a note payable to plaintiff. From an order sustaining named defendant's plea of privilege, plaintiff appealed to the Court of Civil Appeals, which certified to the Commission of Appeals the question whether named defendant was a necessary party to the action within an exception added to venue statute.

Question answered in the affirmative.

Street & Street, of Waco, for appellant.

Henderson, Kidd & Henderson, of Cameron, for appellees.

HICKMAN, Commissioner.

This case is before us on certificate from the Court of Civil Appeals, Tenth District, at Waco. The certificate discloses that the appeal is from an order of the District Court of McLennan County sustaining a plea of privilege interposed by S. E. Gray to be sued in Walker county, the county of his residence. In its petition in the trial court appellant declared upon a note executed by Max Collins and wife, Mrs. Nettie Collins, payable to appellant at Waco, McLennan County, Texas, and secured by a deed of trust lien upon certain real estate situated in Milam County, Texas. It was alleged that thereafter Max Collins died, and Mrs. Nettie Collins, his surviving widow, duly qualified as independent executrix of his estate, and that she later conveyed the mortgaged property to appellee Gray. The prayer of appellant's petition, according to the certificate, was "that the amount of its debt be determined and established as a lien against the property described in said deed of trust, and that such lien be foreclosed." Mrs. Collins filed a formal answer. Appellee Gray filed a plea of privilege asserting his right to be sued in Walker county. Quoting from the certificate:

"* * * Appellant, in response to such plea, asserted by controverting affidavit that the note aforesaid and the deed of trust securing the same constituted a contract in writing which the signers thereof agreed to perform in McLennan county, and that, as recited in its original petition, Mrs. Collins had conveyed the mortgaged property to appellee, Gray, who was then and there in possession thereof and holding and claiming the same. A hearing was had on the plea of privilege and affidavit controverting the same, at which it was agreed in open court that Mrs. Collins resided in Milam County, appellee in Walker County, and that appellant's note was unpaid. It was further agreed that appellee carried fire insurance on the property. In addition to such agreement, the note, deed of trust and a deed from Mrs. Collins to Gray conveying the mortgaged property were introduced in evidence. The consideration in said deed was $1.00 cash and that the grantee should take the property subject to an indebtedness in favor of appellant in the sum of $5390.00, more or less. No further evidence was introduced. The court sustained the plea of privilege retained jurisdiction of the cause of action against Mrs. Collins and ordered the cause of action against said Gray transferred to the district court of Walker County. * * *

"The issue involved is whether, in a suit by a mortgage holder to foreclose his mortgage against the original mortgagor and such mortgagor has, prior to the institution of such suit, conveyed all his right, title and interest in and to the mortgaged property to another and the mortgage holder has notice of such conveyance, such purchaser is a necessary party to the suit within the meaning of subdivision 29a of Article 1995 of our Revised Statutes.

The question certified is as follows: "Is appellee Gray, under the facts hereinbefore recited, a necessary party to this suit, within the meaning of subdivision 29a of Article 1995 of our Revised Statutes as aforesaid?"

The certificate is accompanied by an opinion by Chief Justice Gallagher announcing the same conclusions that are announced by us below.

Admittedly, the suit was maintainable in McLennan county, as against the executrix, under exception 5 of Article 1995, Vernon's Ann.Civ.St. art. 1995, subd. 5, providing, in effect, that a party may be sued on an obligation in any county in which he has contracted in writing to perform such obligation.

Article 1995 provides: "No person who is an inhabitant of this State shall be sued out of the county in which he has his domicile except in the following cases:" Follow then exceptions Numbers 1 to 30, inclusive. In 1927 this article was amended by adding an exception which is designated in Vernon's Texas Statutes as 29a reading as follows: "29a. (Two or more defendants.) Whenever there are two or more defendants in any suit brought in any county in this State and such suit is lawfully maintainable therein under the provisions of Article 1995 as to any of such defendants, then such suit may be maintained in such county against any and all necessary parties thereto."

In Commonwealth Bank & Trust Co. v. Heid Bros., 122 Tex. 56, 52 S.W.2d 74, 75, "necessary parties" was defined in this language: "A `necessary party' to a suit, according to the general understanding of that term, is one who is so vitally interested in the subject-matter of the litigation that a valid decree cannot be rendered without his presence as a party."

Assuming that the term was used in that sense in subdivision 29a, the court in applying that definition to the facts before it in that case held that, in a suit against two defendants in which the plaintiff was seeking to enforce their joint and several liability, he was entitled to the complete relief sought, and that a joint judgment could not be rendered unless both defendants were made parties to the action. It was further held...