Price v. Cole

• Decision Date: 01 January 1871
• Citation: 35 Tex. 461
• Parties: VIRGINIA E. PRICE v. JAMES COLE AND ANOTHER.
• Court: Texas Supreme Court

35 Tex. 461

VIRGINIA E. PRICE

v.JAMES COLE AND ANOTHER.

Supreme Court of Texas.

1871.

1. In an agreed case, prepared under art. 1516, Pas. Dig., the agreement of the parties comprised only the pleadings and proofs in the district court, and did not include the charge to the jury, nor the verdict and judgment. The appellee moves this court to strike out of the record the charge to the jury, because it was not included in the agreed case. But the motion is overruled, for the reason that this court considers that the charge may conduce to the proper understanding of the cause.

2. This court has already decided that art. 4985, Pas. Dig., respecting mortgage liens, was repealed and superceded by articles 4986 and 4988. Gregg v. Gregg, 33 Tex. 462, cited with approval.

3. In 1856, P. executed to his wife his note and mortgage for her separate money loaned him by her. The mortgage was not recorded until early on the sale day, of October, 1868; on which day the land mortgaged was sold under execution against P., issued on a judgment rendered in 1865. The mortgage was filed for record before the hour of sale, and the wife of P. attended the sale and gave public notice of the existence, record, and nature of her mortgage. Held, that a person purchasing the land with such notice held it subject to the lien of the mortgage; and it was error to concede to him the character and right of a bona fide purchaser without notice.

APPEAL from Fayette. Tried below before the Hon. I. B. McFarland.

The opinion of the court states all the material facts. Gay's judgment was recorded in February, 1866. In this court, counsel for Cole, the intervenor and one of the appellees, moved the court to strike out the charge of the court below to the jury, on the ground that it was not comprised within the agreed case, and consequently was not properly part of the record. This motion was overruled in the following opinion:

OGDEN, J.

The agreement in this cause appears to have especial reference to the pleadings of the parties and the statement of facts. It does not include the charge of the court, the verdict of the jury, or the judgment thereon. The record contains the judgment of the court, which recites the verdict. But it fails to show the charge of the court given, or those refused, which we consider material to the proper understanding of the cause. The motion, therefore, to strike out is overruled. But a certiorari to bring up the entire record may be had by either party, if it should be desired.

Hancock & West, for the appellant, on the subjects of the mortgage lien and bona fide purchaser, cited Gregg v. Gregg, 33 Tex. 462;Orme v. Roberts, 33 Tex. 768;Blankenship v. Douglas, 26 Tex. 226;Ayres v. Duprey, 27 Tex. 593; and Fisk v. Wilson, 15 Tex. 432. They insisted that the rights of a married woman cannot be prejudiced by a failure to have her deed recorded, and cited Park v. Willard, 1 Tex. 350;Edrington v. Mayfield, 5 Tex. 363;Gamble v. Dabney, 20 Tex. 76;Warren v. Dickerson, 3 Tex. 462;Higgins v. Johnson, 20 Tex. 389; and Pas. Dig. art. 4642, and note.

J. R. Burns, also for the appellant, cited, on the same questions, Thomas v. Kennedy, 24 Iowa, 406; Welton v. Tizzard, 15 Iowa, 495; Norton v. Williams, 9 Iowa, 528; 3 Abbott Nat. Dig. 297 and 342.

Timmons & Brown, for appellee Cole. The effect of the amendment (art. 4986, Pas. Dig.) to the original statute (art 4985) is to make a mortgage valid between the parties thereto, though not recorded at all; but so far as the rights of third parties are concerned, the original statute is left intact, and mortgages are still void as to them unless recorded within ninety days. This, in the case of Gregg v. Gregg, opinion by Justice Denison, was held to be the effect of this amendment. But so much of the opinion as holds that art. 4985 “was repealed by the fourth section (art. 4988, Pas. Dig.) of the act concerning conveyances,” we suggest, with all due deference, cannot be held as binding by this court, for to do so would violate the commonest rules for the interpretation of the legislative intent. It is an undisputed proposition that, where there is a general law upon a class of subjects, and a special law upon a special subject, and one conflicts with the other, the special law shall prevail.

Article 4988 is the fourth section of a general law on conveyances, containing many provisions upon a variety of subjects, the caption of which law and some of its provisions being found from art. 997 to 1002, Pas. Dig. Articles 4985 and 4986 are special laws upon the subject of mortgages. But see Weed v. Lyon Harring (Mich.), 363.

“In the construction of acts of the same session, the rule is that the whole must be taken as one act; and to make a latter provision repeal a former, there must be an express repeal, or an irreconcilable repugnancy.” Cain v. The State, 20 Tex. 355, question fully discussed.

The general law on conveyances, of which section four (art. 4988) is a part, was passed February 5, 1840, and took effect the sixteenth of March following; while article 4986 was passed the same day, and took effect from passage, and may have been the subsequent act in point of time. But on the principle laid down in Cain v. The State, the general law and special amendment are to be construed together; and it is clear the legislature, far from repealing article 4985, did, on February 5, 1840, expressly recognize and amend it. To hold otherwise is to suppose the legislature guilty of the absurdity of amending article 4985 by 4986, on February 5, 1840, which latter took effect from passage, and on the same day impliedly repealing article 4985 by a provision of article 4988, which did not take effect till March 16; thus leaving article 4985, as amended by article 4986, in force from February 5 to March 16, and that the legislature on the same day impliedly repealed an act it had expressly amended. Is it not a more logical and legal construction to hold that “mortgages” were mentioned in article 4988, among many other things, by an oversight, and that article 4985, as amended by article 4986, is the law of this state on the subject of the record of mortgages? We think our view of the law is strengthened by the fact that nearly every state in the union has a special law upon the registration of mortgages.

In Orme v. Roberts, and Blankenship v. Douglas, the principle laid down is, that courts will protect equitable interests in land, not evidenced by writing, against the mere legal lien of a judgment creditor, when not prevented from doing so by the terms of the registration laws of this state; and that as resulting trusts and vendors' liens are not mentioned in said laws, they are excepted out of them. But as the appellant's mortgage for borrowed money is not “an equitable lien, not evidenced by writing,” nor a resulting trust, nor excepted out of the registration laws, but specifically named therein, we are at loss to perceive any analogy between the cases cited and the one now before the court.

Appellant's mortgage was but an incident to the debt, and her lien a legal one, and not equitable. She had no ownership or estate in the land, as no such thing as a strict foreclosure is known in this state. Duty v. Graham, 12 Tex. 427, subject fully discussed. She could sue on the debt and sell the land. Art. 1479, Pas. Dig. The mortgage of Mrs. Price was but a mere security for the payment of money (Duty v. Graham, 12 Tex. 427) which her husband gave her; and the lien of the judgment was a mere security for the payment of money which the law gave the creditor Gay. The lien of the judgment attached February 2, 1866, when the creditor Gay, in compliance with the statute then in force (art. 3963, Pas. Dig.), filed for record the certified copy of his judgment; and the lien of the creditor, Mrs. Price, attached when her mortgage was filed for record at 10 o'clock on the morning of the sale day, the first of October, 1868. As securities for the payment of money, the two liens stand on an equal footing, and the one first recorded became the superior one; for it is nowhere pretended the creditor Gay had any notice of the unrecorded mortgage previous to its being filed on the day of sale.

Where the judgment creditor has no notice of an unrecorded mortgage, when the judgment lien attaches, the subsequent record of the mortgage and notice at the sale does not bind the land in the hands of the purchaser. The creditor has the right to sell, and the purchaser to buy, and he takes the land discharged of and free from any incumbrance of the mortgage. Uhler v. Hutchinson, 23 Penn. 110;Huling v. Guthrie, 4 Penn. 123; Shepherd v. Burkhotten, 13 Ga. 443; Smith v. Jordan, 25 Ga. 647.

The proposition “that a married woman's rights cannot be defeated by a failure to have her deed recorded,” and the cases cited, seem to us to have no bearing upon the principal case, though this may be from the want of proper discrimination on our part. The foregoing rule is announced in suits which arose from controversies about personal property, under circumstance impossible to exist with real property. The principle decided in Parks v. Willard, 1 Tex. 350, and Warren v. Dickerson, 3 Tex. 460, is, that where the wife's title to personal property is valid, and acquired before removal to another state, that the failure to give notice of title at her new domicile does not prejudice her rights. In Edrington v. Mayfield, 5 Tex. 363, it is held that a failure to return a schedule of separate property under the statute (art. 4996, Pas. Dig., and see note 1098), does not prejudice the wife's rights. The other cases cited are irrelevant.

In this suit there is no question about the separate property of the wife. The land sold was her husband's. Our registration laws (arts. 4985-6 and 4988, Pas. Dig) make no exceptions in favor of married women. The money of married women is often loaned on mortgages, but we are not aware of any statute, or ...