Thompson v. Westbrook

• Decision Date: 24 February 1882
• Docket Number: Case No. 757.
• Parties: L. K. THOMPSON ET AL. v. MATILDA WESTBROOK
• Court: Texas Supreme Court

56 Tex. 265

L. K. THOMPSON ET AL.

v.MATILDA WESTBROOK

Case No. 757.

Supreme Court of Texas.

Feb. 24, 1882.

APPEAL from Polk. Tried below before the Hon. H. C. Pedigo.

Appellants sued one Brick, April 22, 1875, on a note for $1,180, and to foreclose a mortgage on the land described in the petition or alternately for the land, joining appellee as defendant, representing that she was in possession and claiming a portion of the land.

In 1861 Eliza Rudder sold the land to Brick, conveying it to him by a deed absolute upon its face, and therein acknowledging the payment of the purchase money. This deed was recorded in Polk county, where the land is situated, on December 12, 1861. At the time of the execution of the deed Brick executed his note to Mrs. Rudder for the payment of the purchase money of the one thousand two hundred and eighty acres of land conveyed by the deed. It is also claimed by appellants, but denied by appellee, that to secure the note Brick, simultaneously with the execution of the deed and note, also executed a mortgage to Mrs. Rudder upon the land. The mortgage, if executed, was not recorded in Polk county.

February 21, 1864, Brick having failed to pay the purchase money note, Mrs. Rudder considered the trade as of no effect, and conveyed the land by deed to Wm. Jenkins. This deed was not recorded in Polk county. Jenkins conveyed to Cash, December 22, 1866, and the deed was recorded July 7, 1869; from Cash, through mesne conveyances, the appellants claim the land.

July 21, 1870, Brick conveyed three hundred acres of the land to Mrs. Westbrook by absolute deed, which was recorded the same day, and she was then in possession under a bond for title before the deed was executed.

The case was tried by the court May 4, 1876, and a judgment rendered in favor of appellants against Brick for all of the one thousand two hundred and eighty acres of land, save and except the three hundred acres conveyed to appellee. Judgment was rendered in favor of appellee for the three hundred acres, and costs, and the appellants brought that branch of the judgment on an assignment of errors.

James E. Hill, for appellants.

J. M. Crosson, for appellee.

WATTS, J. COM. APP.

In Dunlap v. Wright, 11 Tex., 597, the court, after citing numerous cases bearing upon the point then under consideration, remarked that “The effect of the principles of these cases is that the vendor's deed may be absolute; yet if a mortgage for the purchase money be given back at the same time, the fee will absolutely remain in the vendor.”

Chief Justice Moore, in commenting upon the doctrine of Wright v. Dunlap in the case of Burgess v. Milliken, 50 Tex., 403, said: “But though seizin or title vests in him (the vendee) by the deed, it is nevertheless lost to or divested out of him by his refusal or failure to comply with the terms or conditions upon and by which it was acquired.”

However much, as an original proposition, we might be inclined to the opinion that a deed absolute upon its face and...