Webb v. Maxan

• Decision Date: 01 January 1854
• Parties: WEBB AND OTHERS v. MAXAN.
• Court: Texas Supreme Court

11 Tex. 678

WEBB AND OTHERS

v.MAXAN.

Supreme Court of Texas.

1854.

It seems that a foreclosure and sale are conclusive against the right of a subsequent mortgagee or purchaser to redeem, where the prior mortgagee had no notice of the subsequent mortgage or sale; but otherwise, where the prior mortgagee had such notice.

It seems that the bill of exceptions in this case was regarded as a statement of all the facts.

Where a subsequent purchaser contracted to pay off a subsisting mortgage at maturity, and there was a foreclosure and sale, to which the subsequent purchaser was not made a party, but of which it was inferred, from his own allegations, he had notice, it was held that he could not sustain a bill to redeem against the purchaser at the sale under the foreclosure.

Error from Cameron. The petition of the plaintiff contained the following: “Your petitioner most humbly showeth unto your honor, that when the trial of said cause of Turner & Renshaw against the said Robert B. Kingsbury came on for trial at the last Term of your honorable Court, in this County for the October Term, your petitioner composed and was one of the grand jurors whose duty it was to inquire and true presentments make, of all breaches and viclations of the laws of this State, which had been committed in the body of the county of Cameron, and consequently could not be present to make his defense, nor had he any attorney to represent him in said cause and to show to your honor the good reasons why judgment should not be rendered and the lien and mortgage enforced, as prayed for in Messrs. Turner & Renshaw's petition. Your petitioner further respectfully represents, that not until a short time since did he know or believe that your honor had reached said cause at the October Term of your honorable Court, which was held for Cameron county last fall. Your petitioner further respectfully represents that near the close of the session of said Court, held in and for said county, he, the said Felix, was taken seriously ill and was confined to his bed, and medical services required, and he was so confined until your honorable Court was adjourned sine die. Your petitioner has ever since said adjournment been informed that your honor did not reach half the cases on the docket, there being so many, and that he was always firmly of the opinion this cause was one among the number not reached, and continued in said belief until some short time since, when he noticed in the public journal of the day, or rather the ‘American Flag,’ newspaper, published in Brownsville, the Sheriff's notice to the public, that on the first Tuesday of the present month of January, he would expose my homestead,” etc.

Maxan had been named as a party defendant in the case of Turner & Renshaw v. Kingsbury, and it was prayed “that the said Felix Maxan be cited to show cause why said mortgage should not be foreclosed.” Maxan was not cited; Kingsbury appeared “in his own proper person,” and denied all and singular, etc. The petition was filed August 29th, 1849, and judgment was rendered on the 11th of October, 1849.

The original petition, in this case, was filed January 16th, 1850. The original petition and first series of amendments went upon the ground that the sale was void for fraud, and because the said Maxan had not been made a party; it charged collusion between Webb, the Sheriff, and his Deputy; and that the purchase money had not been paid; alleged that the Sheriff consented to postpone the sale until the next sale day, and accepted a bond from Maxan for the forthcoming of the property; that the property was Kingsbury's homestead at the date of the mortgage; and that Mrs. Kingsbury had not joined in the mortgage; that the sale was not made at the Court-house door, etc., etc. On the coming in of the answers of the defendants, the injunction was on motion dissolved. Plaintiff thereupon took leave to amend and filed an amendment in which he prayed to be permitted to redeem the property as a purchaser under the mortgage, alleging that “when the aforesaid suit was commenced by Turner & Renshaw against Robert B. Kingsbury, they well knew he was not in possession of the aforesaid lot of ground and premises, but that your petitioner was in open and quiet possession; yet no citation, or notice, or demand was ever made or served on him, whereby he could know what proceedings were being had, and a judgment was given against said Kingsbury, by his consent and agreement with said Turner & Renshaw.” This amendment reiterated the objections to the validity of the proceedings and sale, which had been made in the petition and previous amendments.

This amendment made the mortgage deed to Maxan, and the record in the case of Turner & Renshaw exhibits. Under the order of the Court, the amount of the mortgage and interest was deposited by Maxan in the Branch of the Commercial and Agricultural Bank at Brownsville. The answers of the defendants to all of the plaintiff's allegations, were denials general and special, and the allegation that Maxan had actual notice of the suit of Turner & Renshaw v. Kingsbury, and failed and refused to intervene, as he should have done, if his rights were involved.

There was no statement of facts. There was a bill of exceptions as follows:

“Be it remembered that at a Term of the Honorable District Court, begun and holden in and for the county of Cameron, State of Texas, on the eighth Monday after the first Monday in September, A. D. eighteen hundred and fifty, at the city of Brownsville, A. W. Arrington, District Judge, then and there presiding, the cause wherein Felix Maxan is plaintiff, and M. M. Stevens, and others are defendants, coming on to be heard, without the intervention of a jury, the parties having waived the right to trial by jury, upon the documentary evidence, to wit: Copy of the record of the suit No. 60, upon the District Court docket, entitled S. Turner and Henry Renshaw v. Robert B. Kingsbury, with copy of Sheriff's deed to John Webb, and copy of sale of said property, by said Kingsbury to said Maxan, dated July 28th, 1849, the Court then and there decided, that as the said Felix Maxan was not made a party defendant in the suit of Turner & Renshaw v. Kingsbury, the Sheriff's sale of the mortgaged property, described in the pleadings, to John Webb, was null and void, as to the said Maxan, and that said Maxan, as the vendee of the said R. B. Kingsbury, mortgagor, was entitled to redeem the said property, thus mortgaged, he having paid the mortgage debt and interest into Court, to which opinion of the Court, the defendants, by their attorneys except, and tender this their bill of exceptions, which they pray may be signed by the Court,” etc.

The other facts will be found in the opinion of the Court.

J. Denison, for appellants. I. The Court below erred in rendering the decree in this cause, without having the necessary parties before it. (Story's Equity Pleading, Sec. 72 and 73.)

II. The decree is manifestly erroneous in that it does not in any manner secure to the defendant Webb, the money bid and paid out in good faith, at the Sheriff's sale, and in that the said defendant Webb is required to convey to Maxan all his interest acquired at said sale, without the purchase money being refunded.

III. The decree is erroneous, because it leaves the sum of money bid and paid out by Webb, in the hands of the Sheriff, unadjudicated. All the rights and equities of all the parties, in reference to the subject-matter of the suit, should have been adjudicated. (Story's Equity Pleading, Section 72, p. 85.)

IV. The petitioner in the Court below does not show himself entitled to relief, and does not bring himself within the rules of equity:

1st. In seeking to redeem, he should have tendered the sum due, upon the mortgage, with interest and costs.

2d. In seeking relief against Webb, he should have tendered the purchase money and interest. The legal disposition of the purchase money at the Sheriff's sale is first to pay the mortgage debt, interest, and costs, and the balance Maxan was legally entitled to, as the holder of the legal title of the mortgaged property. (18 Johns. R., 543, Beekman v. Goddard.)

V. The Court erred in rendering a decree against defendant below. The record states that Maxan had covenanted to pay the mortgage, and that he knew of the pendency of the suit to foreclose, and by the law he had a right to intervene, and his permitting judgment to be rendered under these circumstances, precludes him from the relief asked for. Maxan had full opportunity to appear and vindicate his rights. (Legg v. McNeill, 2 Tex. R., 428; Hart. Dig., Art. 2503.)

VI. If Maxan had not been made a party to the suit for foreclosure, under the laws of Texas, the decree for foreclosure...