Silliman v. Gano

• Decision Date: 08 March 1897
• Citation: Silliman v. Gano, 39 S.W. 559 (Tex. 1897)
• Parties: SILLIMAN et al. v. GANO et al.
• Court: Texas Supreme Court

39 S.W. 559

SILLIMAN et al. v. GANO et al.

Supreme Court of Texas.

March 8, 1897.

Error to court of civil appeals of Fifth supreme judicial district.

Action by R. M. Gano and others against C. H. Silliman and others to redeem lands from a mortgage foreclosure sale. A judgment in favor of plaintiffs was reversed in part by the court of civil appeals, and from

a judgment there rendered, in favor of plaintiffs, defendants bring error. Reversed.

G. C. Groce, J. B. Davies, and Crawford & Crawford, for plaintiffs in error. M. B. Templeton and Gano, Gano & Gano, for defendants in error.

GAINES, C. J.

This action was brought by R. M. Gano, Clara B. Gano, as surviving wife of John T. Gano, deceased, administering the community estate of herself and her deceased husband, as survivor, under the statute, and C. W. Gano, against C. H. Silliman, the Land Mortgage Bank of Texas, and H. L. Payne. The case made by the amended petition and trial amendment is thus stated in the application for the writ of error, and is in the main sufficiently full for the purposes of this opinion: "That on and prior to September 13, 1893, R. M. Gano was the owner and in possession of a tract of land of 3,000 acres, situated in Ellis county, and at the same time C. W. and Clara B. Gano (the latter as community executrix of J. T. Gano, deceased) were the owners of and in possession of a second tract of land of 2,020 acres, in said county, both tracts being described, and each consisting of divers smaller tracts; and that said parties held said lands subject to the liens of certain mortgage debts by H. L. Payne to the plaintiff in error the Land Mortgage Bank of Texas, Limited, foreclosed by judgment of the district court of Travis county on September 13, 1893, for $49,008, against said H. L. Payne, with a foreclosure of lien for $30,661 on the first-mentioned tract of land, and for $18,347 on the second-mentioned tract of land. That said defendants in error held said lands subject to the incumbrances aforesaid, and that the foreclosure aforesaid was instituted and prosecuted under an agreement that the plaintiff in error Silliman, who was the agent of his co-plaintiff in error, the holder of said mortgage debts, should foreclose said liens, and buy in said property, and then permit the defendants in error within a reasonable time to pay off said incumbrances by new loan or otherwise, and reacquire title to the lands. That this agreement was for the purpose of saving and preserving to themselves and certain creditors (second lienholders on said lands, alleged subsequently to have been paid off) the equities in said lands. That, under such agreement, foreclosure was had, and the lands sold at sheriff's sale on November 7, 1893, and bid in by Silliman at an inadequate price, said sales being of each tract, and not in subdivisions; and that, after such purchase, plaintiff in error Silliman repudiated the alleged agreement, and, acting for himself and his co-plaintiff in error, sold and disposed of about 4,300 acres of said land, for the gross sum of $74,000, and still had in his possession about 670 acres thereof; and that the lands were worth $50,000 more than the amount of the lien incumbrances thereon. And judgment was prayed that said Silliman be held as a trustee for the defendants in error by reason of his purchase as aforesaid; and that he and his co-plaintiff in error be charged with all sales made by him of said lands, and for judgment against them for the balance of the excess of sales over the lien debts; and that defendants in error be divested of all title to the lands remaining unsold, as to which discovery was asked, and title thereto be vested in defendants in error; and for judgment for rents and for a writ of possession, and, in the alternative, for the difference in value of the entire lands over the mortgage debts; and, should this be refused, that the sheriff's sale be set aside, and the deeds to Silliman canceled; and for general relief. In the trial amendment * * * it was averred, in substance, that the consideration of the agreement aforesaid was that the defendants in error waived the promises of Silliman not then to foreclose, and the right which they claimed to then prevent foreclosure because of the existence of the levy of a writ of attachment on said lands, issued out of the federal court at Dallas, at the suit of one James Guthrie, a creditor of the defendants in error." Payne appears to have had no interest in the suit, and did not answer. The original petition was filed November 22, 1893, but does not appear in the transcript. The defendant Silliman answered this, and denied generally all the allegations of the petition, except as admitted in his special answer. The special answers denied specifically the agreement upon which the contract was based, and alleged many facts which were in the main mere matters of evidence. His answers were adopted by his co-defendant the Land Mortgage Bank. After the coming in of the plaintiffs' amended petition, Silliman filed another answer, expressly in reply thereto, but which he denominated a "supplemental answer," in which he denied all the allegations of the amended petition, without qualification, and specially answered, setting forth many allegations not necessary to be stated. This answer was also adopted by his co-defendant the Land Mortgage Bank.

Upon the trial the case was submitted to the jury upon special issues; but no issue was propounded as to the ownership of the respective tracts of land by R. M. Gano and C. W. and Clara B. Gano, as alleged in the petition, and consequently there was no finding as to those facts. The right asserted in the petition was a right to redeem the lands in the hands of Silliman, claimed to have accrued by reason of an agreement to that effect made by Silliman with the plaintiffs, as owners of the land, subject to the mortgage in favor of his co-defendant. The plaintiffs prayed in the alternative for a recovery of the value of the lands in excess of the mortgage debt, and such was their recovery. It is obvious, we think, that the determination of the issue of their title to the lands in their favor was essential to support such a judgment. There was no evidence tending to show that they did not have title, and it may be that the facts with reference to the mortgage may have been sufficient to warrant a finding that they were the owners as alleged. But the fact remains that the issue was neither submitted nor found by the jury, and it is urged that this is fatal to the judgment.

Section 108 of the act of May 13, 1846, "to organize the district courts, and to define their powers and jurisdiction," reads as follows: "In civil suits the jury may find and return a special verdict in writing, in issues made up under the direction of the court, declaring the facts proved to them; any verdict so found shall be conclusive between the parties as to the facts found." Pasch. Dig. art. 1469. In Claiborne v. Tanner, 18 Tex. 68, in which a special verdict was returned, and which was decided while this act was in force, the court reversed the judgment, because all the facts were not found, and in their opinion say: "There can be no clearer principle than that, where a jury has intervened and all the issues have been submitted to their decision, their verdict must constitute the basis of the judgment. The court cannot look to the evidence on which the verdict was found, in order to determine what judgment to render, but must look alone to the verdict; for it is upon that which the jury have found, not what they might or ought to have found, that the court proceeds to render judgment. The judgment is the conclusion of law upon the facts of the case, as found by the verdict of the jury." In Paschal v. Acklin, 27 Tex. 173, there was a verdict upon special issues submitted by the court, and the judgment was reversed upon the ground that there was no finding that Mrs. Acklin, one of the plaintiffs, was the heir of her deceased children, though the fact was indisputably proved, and in part admitted. See, also, Paschal v. Cushman, 26 Tex. 74; Ledyard v. Brown, 27 Tex. 393; Jackson v. State, 21 Tex. 668; Mussina v. Shepherd, 44 Tex. 623. We have found no case in this court which announces a contrary rule; and the cases cited, to which others to the same effect might be added, seem to settle the law so far as the decisions of a court may do so. But in the Revised Statutes of 1879 the language of the statutory provision with reference to verdicts upon special issues was so changed as to read as follows:

"Art. 1330. A special verdict is one wherein the jury find the facts only on issues made up and submitted to them under the direction of the court.

"Art. 1331. The special verdict must find the facts established by the evidence, and not the evidence by which they are established, and the findings must be such as that nothing remains for the court but to draw from such facts the conclusions of law."

These articles are but declaratory of the law as it had been announced by the court, and, in our opinion, the change of language could have been intended but for one purpose, which was to make the rule statutory, and so to fix it, and place it beyond the power of the court to alter it by a modification of its previous rulings. Since the adoption of the Revised Statutes, the rule has been rigidly followed. It has been recognized in the utterances of this court in many cases (Moore v. Moore, 67 Tex. 293, 3 S. W. 284; Cole v. Crawford, 69 Tex. 124, 5 S. W. 646; Heflin v. Burns, 70 Tex. 347, 8 S. W. 48), and was notably applied in Newbolt v. Lancaster, 83 Tex. 271, 18 S. W. 740. In that case the plaintiff claimed the land in controversy by virtue of a judgment and sheriff's sale thereunder, as the property of the defendant in execution. The defendant in the case was grantee of the execution debtor, and pleaded a general denial. In a special answer she admitted...