Spurlock v. Sullivan

• Decision Date: 01 January 1871
• Citation: 36 Tex. 511
• Court: Texas Supreme Court
• Parties: JANE SPURLOCK AND OTHERS v. H. H. SULLIVAN AND ANOTHER.

36 Tex. 511

JANE SPURLOCK AND OTHERS

v.H. H. SULLIVAN AND ANOTHER.

Supreme Court of Texas.

1871.

1. It must appear by the transcript that objections to testimony were taken in the court below, or they will not be considered by this court.

2. B. S. sold a negro belonging jointly to himself, his mother, brother, and sister, and with the proceeds bought a tract of land and took the title thereto in his own name, and for several years occupied the land to their exclusion. Held, that though he took the legal title in his name alone, he was the owner of but a fourth interest in the land, and held the other three-fourths in trust for his mother, brother, and sister; and that his individual interest is liable to them for the value of the use and occupation of their three-fourths to their exclusion, and his assignee with notice of their rights is liable to them in like manner.

3. A creditor who has taken a mortgage on property to secure his pre-existing demand is not entitled to the protection accorded to a bona fide purchaser for a valuable consideration; and therefore his mortgage cannot supplant prior equities of third parties, though he had no notice of such equities when he took his mortgage.

4. S. bought land with the joint funds of himself, his mother, brother, and sister, but took the title in his own name alone. Subsequently, he offered to pay his individual creditor by a sale or a lease of the land, or to secure him by a mortgage upon it. The creditor took a mortgage, and afterwards explained to a third person that he preferred the mortgage because he feared the title was not clear and that other parties would claim an interest in the land. The creditor was intimate with S. and his mother, brother, and sister, and it does not appear that any persons besides them claimed any interest in the land. Held, that these and similar facts sufficiently demonstrate that the creditor, when he took the mortgage, had notice of the rights and interest of the mother, brother, and sister of S. in the land; and therefore his mortgage is subject to their rights and equities.

APPEAL from McLennan. Tried below before the Hon. J. W. Oliver.

The opinion of the court gives a lucid statement of the material facts of the case.

N. W. Battle, for the appellants.

F. H. Sleeper and E. A. McKenney, for the appellee.

OGDEN, J.

In 1868, this suit was instituted in the District Court by H. H. Sullivan, against Bethel Spurlock, upon a certain promissory note for eleven hundred and fifty dollars, dated in 1866, and to foreclose a mortgage given upon a tract of land, to secure the payment of the note. The appellants intervened, and claimed an equitable interest in the mortgaged land, and in their petition of intervention they alleged that the land was purchased by Bethel Spurlock, for the common benefit of the intervenors and said Bethel and Drury Spurlock, and that though he took the deed for the land in his own name, yet he paid for the same with the proceeds of the sale of a certain negro woman, who was the joint property of the intervenors and said Bethel and Drury Spurlock, and that by reason of said purchase, and the payment of the proceeds of the sale of said negro, they became the equitable owners with the said Drury Spurlock, of an undivided three-fourths interests in said land, and the said Bethel Spurlock held the legal title to the same, in trust for the intervenors and said Drury Spurlock; and that afterward the said Drury Spurlock assigned and transferred his interest in and to the same to one of the intervenors.

The intervenors further claim that in 1865, Bethel Spurlock forcibly evicted them from the land, and that he, by himself, his tenants and assigns, have since held possession of the land, using, occupying, and renting the same for his own benefit; and they pray for a judgment against the said Bethel Spurlock, for the reasonable value of the rent of said land, or so much thereof as they may be entitled to, since 1865; and that the said one-fourth interest of said Bethel be subjected to the payment of the same.

It is further alleged that at the time of taking the mortgage from said Bethel Spurlock, said Sullivan well knew the superior and prior equities and rights of the intervenors, and that therefore the mortgage, so far as their interest is concerned, is null and void; and they pray that the same be canceled and held for naught, so far as the same conflicts with their rights.

On the trial a jury was waived, and the cause submitted to the court, to be determined on the law and the facts of the case. A judgment was rendered for the plaintiff for the amount of the note sued on, and a decree entered foreclosing the mortgage on the land; from which the intervenors have prosecuted this appeal.

There was no attempt to disprove the indebtedness of Bethel Spurlock to the plaintiff Sullivan, and no complaint is made here that the District Court rendered judgment in favor of the plaintiff for the amount of the note and interest, and the judgment in that respect will not now be disturbed.

Neither is there any contest in regard to the mortgage, so far as the interest of Bethel Spurlock is concerned. If, therefore, Bethel Spurlock owned the land in controversy at the time of executing the mortgage, or if he held the legal title to the same, and Sullivan became a mortgagee for a valuable consideration, paid without notice of prior equities upon the land, then his mortgage must be held good and binding upon the land, and the judgment of the District Court in all things be affirmed.

The only parties who dispute the title of Bethel Spurlock to the land in controversy, or his right to mortgage the same to Sullivan, are the intervenors, who claim prior and superior equities in themselves. We must, therefore, in order to a proper disposition of this cause, determine whether the intervenors had such an interest in the mortgaged premises, as Bethel Spurlock could not rightfully dispose of or encumber, and which it would have been, before the execution of the mortgage, the duty of the courts to enforce; and if so, then did the plaintiff Sullivan, at the time of taking the mortgage, have actual or constructive notice of such prior equities.

The intervenors claim that the land in controversy was purchased with the proceeds of the sale of the negro woman Betsy, and we think the bill of sale of October 26th, 1863, the testimony of Drury Spurlock, Jno. G. Sanderson, W. P. S. Majors, Levi Robinson, and John Robinson, and the statement of N. M. Good, establish the validity of that claim beyond a reasonable doubt. Bethel Spurlock stated on several occasions that his object in disposing of Betsy was to enable him to buy a place or home; and he made a proposition to Good to exchange the negro for the land, but, as Good did not want the negro, he sold her to M. Robinson, as he said, to raise money to buy the Good place, and did buy and pay for the Good farm soon after the sale of the negro; and in 1865 or 1866, Bethel Spurlock tacitly admitted to Sanderson that he had bought the land with the negro Betsy, but claimed that she was his own individual property. These and other facts proven would now estop him from denying that the land was...