Watts v. Corner

• Decision Date: 07 November 1894
• Citation: 27 S.W. 1087
• Parties: WATTS et al. v. CORNER et al.
• Court: Texas Court of Appeals

27 S.W. 1087

WATTS et al. v. CORNER et al.

Court of Civil Appeals of Texas.

November 7, 1894.

Appeal from district court, Llano county; W. M. Allison, Judge.

Suit by Elise M. Watts and another against Corner, Walker & Davis and another. From a judgment for defendants, plaintiffs appeal. Affirmed.

Chas. L. Lauderdale, for appellants.

Statement of the Case.

FISHER, C. J.

This suit was instituted to December term, 1892, of the district court of Llano county, Tex., by appellant Elise M Watts, joined by her husband, against Corner, Walker & Davis and Ben A. Ligon, seeking an injunction, which was granted, and which was asked to be perpetuated, restraining Corner, Walker & Davis, as plaintiffs in a certain judgment, and Ligon, as sheriff, from the execution of that judgment as to the certain lots described in said Elise's petition in this suit. She alleged in said petition that on November 26, 1887, said lots were sold to her, and were paid for with her separate means, she then being the wife of said W. T. Watts; that said lots were conveyed to him under said sale for her use, and were so held by him in trust; that while he was so holding them her husband, without her knowledge or consent, executed in favor of defendants Corner, Walker & Davis, to secure to them the payment of an antecedent debt, a mortgage on said lots; that, without service of citation on or appearance by her, defendants caused to be entered in the minutes of the district court of said county a pretended judgment against her, as well as against said W. T. Watts, establishing and foreclosing said mortgage as a lien upon said lots for the sum of $3,155.82, and ordering them sold for the satisfaction of said judgment; that an order of sale thereunder had been placed in said Ligon's hands, as sheriff of said county, and he was about to sell said lots thereunder; that she is, and had ever since said purchase been, the equitable owner of said lots. Wherefore, she prayed for a perpetual injunction against the sale of said lots under said judgment. Defendant Ligon defaulted, but the other defendants answered by general demurrer and general denial, and specially that they were bona fide mortgagees of said lots from said W. T. Watts, who held the legal title thereto. The case was tried without a jury, and resulted in a judgment for defendants, dissolving the injunction, and establishing and foreclosing the mortgage to the extent of the debt against said lots.

Findings of Fact.

We copy in full the agreement of the parties as to the facts in this case, and the issues involved: "It is agreed that the following facts were proved on the trial, and the parties agree to submit the cause upon the questions of law arising thereon, for adjudication, to said court of civil appeals, to wit: (1) That on the 26th day of November, 1887, W. T. Moore, Jr., conveyed to W. T. Watts, husband of plaintiff Elise M. Watts, lots 9 and 12 in block 7, lots 7, 8, 9, 10, 11, and 12 in block 18, lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, and 12 in block 23, all in Moore's addition to the town of Llano, in Llano county, Texas. That the deed of conveyance to said W. T. Watts placed the legal title in him, and there was nothing in said deed to put Corner, Walker & Davis, who became subsequent mortgagees of said property, on inquiry as to any right or equitable claim of plaintiff Elise M. Watts in or to same. That the consideration paid for said property, to wit, $3,500, was the separate means of said Elise M. Watts; and that she agreed to allow the title to be placed in her said husband for the sole purpose of enabling him the better to handle same. (2) That between the month of November, 1887, and the 1st day of January, 1889, defendants sold and furnished C. W. McKinney and said W. T. Watts goods and merchandise on a credit, and that on said 1st day of January, 1889, said McKinney & Watts were indebted to said Corner, Walker & Davis in the sum of $3,155.82, which was then past due and payable. That in order to secure said Corner, Walker & Davis in the payment of said indebtedness, and to give them an extension of time on its payments, and to enable them to pay same, said McKinney & Watts executed to said Corner, Walker & Davis their promissory note in writing for $3,155.82, bearing date January 1, 1889, and due January 1, 1890, with 8% per annum interest from date. That to secure the payment of said note said W. T. Watts executed a mortgage on the lots above described. Said mortgage was filed for record in Llano county, and duly and legally recorded May 27, 1889. The note is dated January 1, 1889, and the mortgage, January 22, 1889; but it is agreed that the execution of both were one and the same transaction, and that the execution of the mortgage was agreed upon at the time the indulgence and agreement as to future continuation of the business were entered into. That at the time of said last-named agreement, and the execution of said note and mortgage, Corner, Walker & Davis had no notice, actual or constructive, as to plaintiff Elise M. Watts' equitable interest in said property. That thereafter, to wit, on the 19th day of April, 1890, said W. T. Watts executed to his said wife a deed conveying to her the said property. That Mrs. Watts had no notice of the existence of the mortgage until about April 1, 1890. (3) That on the ____ day of...