W. L. Buchanan, Adm R v. Monroe

• Decision Date: 01 January 1858
• Citation: 22 Tex. 537
• Parties: W. L. BUCHANAN, ADM R, AND ANOTHER v. H. W. MONROE AND ANOTHER.
• Court: Texas Supreme Court

22 Tex. 537

W. L. BUCHANAN, ADM R, AND ANOTHER

v.H. W. MONROE AND ANOTHER.

Supreme Court of Texas.

1858.

The doctrine of equity is, that the equity of redemption, is the real and beneficial estate, tantamount to the fee at law; and it is accordingly held to be descendible by inheritance, devisable by will, and alienable by deed, precisely as if it were an absolute estate of inheritance at law.

See this case, for what is said by the court, as to the character of the estate held by the mortgagor and mortgagee; its quality and liabilities; and as to the effect of the death of either party, in respect to their rights, and the manner of enforcing the same.

A mortgagor of real estate may convey the same to a third party, subject to the mortgage, and in a suit by a purchaser of the mortgaged property (at a sale by the mortgagee, made by virtue of a power of sale contained in the mortgage) to recover the possession, and remove the cloud upon his title, against such third party: Held, that the conveyance of the land by the mortgagor, in fee, transferred to the purchaser the equity of redemption of the mortgaged premises; and to affect the rights of the purchaser, he would be a necessary party to the suit. The mortgagor, having parted with his entire estate, would not be a necessary party. 11 Tex. 526;29 Tex. 7.

The purchasers of the mortgaged property were subrogated to the estate of the mortgagors, and all their rights in relation thereto. Therefore, the death of one of such purchasers, before the sale made by the mortgagee, revoked the power to sell, which could only be enforced by proceedings in the probate court. 16 Tex. 472;17 Tex. 627;18 Tex. 200;20 Tex. 42, 126, 402;27 Tex. 80.

APPEAL from Gonzales. Tried below before the Hon. Fielding Jones.

This suit was brought in the court below, by Hugh W. Monroe and John Monroe, trading under the firm of Monroe & Brother, against Sarah Wyatt, widow of Wm. H. Wyatt, deceased, and Wm. L. Buchanan, administrator of the said W. H.Wyatt. In the original petition, filed at the fall term, 1857, in the form of an action of trespass to try title, the plaintiffs deraigned title through a sale under a mortgage given by Wm. M. Phillips, and M. J. Phillips, his wife, to Everett Lewis.

The mortgage was dated 13th November, 1856, and was given to secure a note, of the same date, for the sum of $750, payable in nine months from date. It contained a power to sell, in default of payment, by giving notice in a manner therein expressed. On the 15th of November, 1856, Phillips and wife sold and conveyed the mortgaged premises in fee, to William and Sarah Wyatt, with an express recognition in the deed, of the existence of the mortgage, and a conditional covenant of general warranty, in case the purchasers (Wyatts) removed the incumbrance; but, otherwise, the deed to operate as a quit claim. This deed was acknowledged in the usual form, before said Everett Lewis as notary public, and duly recorded, and under it Wyatt and wife took possession of the property.

After the date of this deed, and before the maturity or payment of the note, William H. Wyatt died, leaving his family in possession, and William L. Buchanan, the appellant, administered on his estate. The note of Phillips and wife, secured by the mortgage, not being paid at maturity, Lewis, under the power to sell contained in the mortgage, proceeded to advertise, according to the mode pointed out in the power; and on the 14th day of September, 1857, sold the said mortgaged premises, at public auction, to Monroe & Brother, and, as trustee, gave the purchasers the deed on which their title rested; all of which titles or deeds, and proceedings, were made a part of the pleadings.

The defendants answered by filing general exceptions, and a plea of the general issue.

The plaintiffs amended their petition charging that the deed from Phillips and wife to Wyatt and wife, being of record, and defendants in possession claiming title under it, was a cloud upon the plaintiff's title, which they prayed might be removed, by annulling and rendering void the said deed.

The cause coming on for trial, the defendants' exceptions to plaintiffs' petition was overruled; and the cause being put to the jury, the plaintiffs read in evidence, the mortgage from Phillips and wife to Lewis, the deed from Phillips and wife to Wyatt and wife, and the deed from Lewis to plaintiffs. They also proved, by Lewis, the mortgagee, that he (Lewis), as he believed, made the sale according to law; that he advertised the sale of the property, in the Gonzales paper; and at two places in the county, put up notices. To the admission of the deeds, and the testimony of Lewis, the defendants objected, and their objections were overruled by the court. Upon cross-examination of said Lewis, the defendants propounded the following questions:

1st. Were not Phillips and wife, at the time they executed the mortgage to witness, occupying the mortgaged premises as a homestead?

2d. Was not Jane Phillips, one of the mortgagors, dead, at the time of the sale made by him?

3d. Were you (witness) not cognizant of the sale from Phillips and wife to Wyatt and wife, at the time of said sale; and did you not agree with Phillips and wife, to take Wyatt and wife in place of said Phillips and wife, for the payment of the note secured by the mortgage?

4th. Whether Wyatt and wife did not give their own homestead, in consideration of the property in question?

5th. Did not Wyatt and wife occupy the premises in question as a homestead, after said sale; and what was the value of the premises sued for?

6th. Was Wyatt living or dead, at the time of the sale made under the mortgage by Lewis, the witness?

To all of which questions the plaintiffs objected; the objections were sustained by the court, and the defendants excepted.

The defendants then offered the transcript of the record of the probate court, showing the appointment of Buchanan, as administrator of said W. H. Wyatt, deceased; and the inventory of Wyatt's estate showing that the premises in question were set apart as the homestead for the family of the decedent; to all of which the plaintiffs objected, and the objections being sustained by the court, the defendants excepted.

The defendants asked the court to charge the jury: 1st. That if Mrs. Phillips, one of the mortgagors, was dead at the time of the sale by Lewis, his sale and deed to plaintiff conveyed no title. 2d. That if they believed, from the evidence, that Mrs. Wyatt, one of the grantees from...