Sugg v. Mozoch

• Decision Date: 09 April 1927
• Docket Number: (No. 7092.)
• Citation: 293 S.W. 907
• Parties: SUGG v. MOZOCH et al.
• Court: Texas Court of Appeals

293 S.W. 907

SUGG v. MOZOCH et al.

(No. 7092.)

Court of Civil Appeals of Texas. Austin.

April 9, 1927.

Rehearing Denied April 27, 1927.

Appeal from District Court, Williamson County; Cooper Sansom, Judge.

Action in trespass to try title by J. D. Sugg against I. J. Mozoch and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Spell, Naman & Penland, of Waco, for appellant.

Wilcox & Graves, of Georgetown, Winbourn Pearce, of Temple, and A. L. Curtis, of Belton, for appellees.

BLAIR, J.

Appellant sued appellees in trespass to try title for certain real estate in Williamson county, asserting title thereto under a quitclaim deed from John T. Sudduth to himself, and recovered judgment for possession, without prejudice, however, to the rights of the parties in reference to certain unsatisfied judgments in favor of W. P. Young et al. against Sudduth, foreclosing vendor's and deeds of trust liens on the land; appellees as owners of these judgments being in possession of the premises when the suit was filed. Appellant's judgment for possession was reversed by the Commission of Appeals upon the ground that appellees and their grantors or assignors of the purchase-money notes or the judgments representing them at least stood in the position of a mortgagee in lawful possession of the land, and that appellant was not entitled to possession as grantee of Sudduth's legal title until he complied with Sudduth's contracts and paid or tendered payment of the amount due on his purchase-money notes or on the judgments foreclosing them; and the cause was remanded so as to permit appellant to establish his allegations that the notes or judgments had been satisfied, or any other "equities not disclosed by the record." See Mozoch v. Sugg (Tex. Civ. App.) 240 S. W. 625, and Id. (Tex Com. App.) 254 S. W. 770.

Now, when the cause again reached the trial court, appellant abandoned, in so far as concerns this appeal, all issues of satisfaction of the notes or judgments pleaded, and filed a supplemental petition, seeking in the alternative to foreclose a statutory "lien of judgment" on the land, alleged to exist by virtue of a judgment rendered for appellant against Mid-Tex Oil Mills in the district court of Bell county, the abstract of which was filed in Williamson county on August 6, 1919, and at which time Mid-Tex Oil Mills was alleged to be the true owner of the land in controversy. On a trial to the court without a jury, appellant was denied a foreclosure of his alleged statutory lien, and judgment was rendered for appellees, which we affirm for two reasons:

1. The judgment debtor, Mid-Tex Oil Mills, was not shown to have ever had any such interest in the land as would subject it to the lien of judgment prescribed by article 5449, R. S. 1925. We shall commence where the opinion on the former appeal left off. That opinion is res adjudicata of the question that the interest of W. P. Young as record nominal owner of the vendor's or deeds of trust lien notes, or the unsatisfied judgments representing them, and the interest of his grantees or assignees was at least that of a mortgagee in lawful possession of the land. The evidence adduced on this trial amply justifies a finding in support of the judgment that the only interest W. P. Young or his grantees or assignees ever had in the land was that of a mortgagee in lawful possession, conditioned that they surrender possession of the holder of the legal title upon his paying the mortgage debt. It is admitted that whatever interest Young had as nominal record owner of the purchase-money notes or the judgments foreclosing them was in fact held by him in trust for the Mid-Tex Oil Mills, the judgment debtor.

The lien of judgment fixed by statute only attaches to "all the real estate of the defendant," and the term "real estate" as used in the statute has been construed to be synonymous with and a convertible term in law of "title in fee simple to real estate," and "that no one can be owner of land or real estate unless he has title to it in fee simple." Scogin v. Perry et al., 32 Tex. 22. Or, as held in Bourn v. Robinson, 49 Tex. Civ. App. 157, 107 S. W. 876:

"The terms `real estate,' as used in this article, mean something more than a mere chattel interest in land — more than a simple contract right to perform conditions, aside from the payment of the purchase price — and demand a conveyance of the title. They import a freehold interest, either an estate for life, or in fee simple. Scogin v. Perry, 32 Tex. 21; Harrington v. Sharp, 1 G. Greene (Iowa) 131, 48 Am. Dec. 365."

It is also well settled that vendor's lien notes, mortgages, or deeds of trust liens on real estate are personal property, and we think that an unsatisfied judgment foreclosing any such lien gives no greater interest, because in either instance the land must be surrendered upon the payment of the debt. Freeman on Judgments (5th Ed.) vol. 2, pp. 1974, 2021, and 2043; Pease v. Franks, 263 Ill. 500, 105 N. E. 299; Tunnell v. Johnson (Tex. Civ. App.) 209 S. W. 450.

The following from Freeman on Judgments (5th Ed.) vol. 2, p. 1970, expresses our view:

"At common law a judgment lien did not attach to a mere equity, though the equity was accompanied by possession. This rule of the common law prevails in several of the United States and is generally applied, in the absence of any statute creating a different rule. Thus, though the statute provided that a judgment should `be a lien on all real property of the judgment debtor, not exempt from execution, owned by him in the county at the time of docketing,' it was held not to make a judgment a lien on the equitable title of the defendant" — citing Brandies v. Cochrane, 112 U. S. 344, 5 S. Ct. 194, 28 L. Ed. 760; Cook v. Dillon, 9 Iowa, 407, 74 Am. Dec. 354; Flint v. Chaloupka, 72 Neb. 34, 99 N. W. 825, 117 Am. St. Rep. 771; Chautauque County Bank v. White, 6 N. Y. 236, 57 Am. Dec. 442.

Texas courts have "consistently" followed the common-law decisions in determining the nature and extent of interest in real estate as would subject it to a statutory lien of judgment. First State Bank v. Jones, 107 Tex. 623, 183 S. W. 876. So, in view of these decisions, we are of the opinion that the lien of judgment fixed by our statutes does not attach to the interest of a mortgagee, although in lawful possession, who has already elected to enforce his mortgage contract and has foreclosed his...