Wife v. Harris

• Decision Date: 01 January 1854
• Citation: 11 Tex. 300
• Parties: HALL AND WIFE v. HARRIS AND OTHERS.
• Court: Texas Supreme Court

11 Tex. 300

HALL AND WIFE

v.HARRIS AND OTHERS.

Supreme Court of Texas.

1854.

Where a deed of trust, on personal property, contains a stipulation, that until the sale shall be made, the grantor shall have the uninterrupted possession of it, it seems that the sale may be made by the trustee, though at public sale, without taking possession; but if, in such a case, the grantor or person in possession of the property, should be claiming to hold it adversely to the trust, it would be the duty and right of the trustee to recover possession before selling.

It is not a valid objection, in a suit to enforce a trust, that the beneficiary is made a party; on the contrary, the beneficiary seems to be a necessary party, in such a case.

It is competent for any one who was not a party to the suit, to impeach its effect, as to him, in any case of a lien acquired before the rendition of the judgment (institution of suit in rem).

Quere? Whether the law in this country ever gave the wife a tacit or legal mortgage on her husband's property, to re-imburse her for her extradotal or paraphernal property, delivered by her to her husband and by him converted to his own use.

It seems that the wife can enforce against her husband, in the Courts of this State, after the removal hither of themselves and property, a tacit or legal mortgage which was given to her, by the laws of the State where the marriage took place, against all her husband's property, to re-imburse her for paraphernal property which was delivered by her to him and by him converted to his own use (before their removal?) But she can have no preference over purchasers or creditors by special lien, of the husband, who claim by act done before she sues and obtains a judgment. (Note 50.)

Appeal from Brazoria. On the 20th of October, 1840, Hall executed a deed of trust to Harris & Pease, on certain slaves, to secure the payment of a debt to Alcorn. The deed contained a power to sell, at public sale, when required by Alcorn, in case of failure of payment, and stipulated that “until such sale, as is hereinbefore mentioned, shall be made, the said W. D. C. Hall, or his legal representatives, shall have the uninterrupted use, possession, and benefit of said property.” The execution of said trust was afterwards stayed, by agreement, one-half to the 1st of January, 1845, and the other half to the 1st of January, 1846. On the 1st October, 1846, the appellees brought this suit to subject the trust property to the payment of the debt, and for that purpose, to enforce the delivery of the slaves to the trustees, in order that they might proceed to sell them, etc., alleging that they were in possession of the said W. D. C. Hall and Julietta, his wife, and claimed as the property of said Julietta; that Alcorn had requested the trustees to sell the slaves: and that the trustees had requested the defendants to deliver them up to be sold; which they refused to do.

The answer of Hall contained a demurrer, and is not otherwise important. The answer of the wife, among other matters not noticed by the Court, contained a plea to the effect, that she was married to the said W. D. C. Hall, in Louisiana, in 1821, and had certain extradotal or paraphernal property; that she delivered it to her husband who received and used the same for his own benefit; that by the laws of Louisiana she had a legal mortgage on all her husband's property to re-imburse the same; and in 1845 she sued her husband for the same and recovered a judgment in the Brazoria District Court, for $5,590 20-100, establishing a lien and legal mortgage on all her husband's property, on which judgment execution was issued and levied upon the slaves, in June, 1845, and she became the purchaser. She made said proceedings a part of her answer.

The plaintiffs excepted to the said plea; and May 19th, 1851, their exception was overruled. At Fall Term, 1851, there was a trial, at which the facts, above stated, as alleged on both sides, were proved. Verdict and judgment for the plaintiffs.

Alexander & Atchison, for appellants.

E. M. Pease, for appellees.

LIPSCOMB, J.

The first point, presented for our consideration by the appellants' brief, is, the supposed error of the Court below, in overruling the exceptions of the defendants to the plaintiffs' petition and amended petition. They contend that there is no cause of action set out in the petition; that, by the terms of the deed of trust, Hall was entitled to the possession, down to the sale, and that his possession was a lawful possession until a sale had been made, and that the possession by the trustees, before or at the sale, was not necessary to the validity of a sale in the execution of their trust; that the sale would have been valid, without their being in possession of the trust property. This may be true as an abstract question; because, then, Hall would have been held as holding possession for the trustees, and his possession would have been for their use. But when he sets up an adverse title, to the title of the trustees, and claims under such title, as is alleged in the petition, the principle does not apply; because, then, he in effect disavows so holding the property, and disclaims the trust. The plaintiffs, in their petition, allege this adverse claim of title and possession as being in Mrs. Hall, under a sale and purchase by her, and that the defendants have refused to give possession, though demanded. Under such circumstances, the right of possession and title of the trustees being denied, had they proceeded to sell the trust property so incumbered by an adverse party, it would not have been a faithful discharge of the trust; because it is not likely that the property, so incumbered with an adverse possession and title, would have sold for its fair value; and it is probable, it would not have raised an amount sufficient for the payment of the debt intended to be secured by it.

The two next exceptions are not supported by the record: a want of a demand, and a want of averring that Alcorn, the beneficiary in the deed of trust, had not requested the trustees to proceed to execute the trust; both of these facts are alleged in the petition of the trustees.

There is another exception, to the parties. It is insisted that Alcorn, the beneficiary, is an improper party. This exception is not well taken; because, when the title of the trustees was disclaimed, and an adverse title set up, as alleged in the petition, his interest in the suit to enforce his rights, was material; but it is not perceived on what ground the defendants could object to his being a party to the suit, being a proceeding in chancery to enforce and execute a trust for his benefit; and, in such cases, all parties, to be affected by the result of the suit, ought to be made parties. Judge Story lays down the doctrine, on the subject of parties in suits of this kind, to be as follows, i. e., “The general rule in cases of this sort is, that in suits respecting the trust property, brought either by or against the trustees, the cestui que trust, or beneficiaries, as well as the trustees also, are necessary parties. And when the suit is by or against the cestui que trust, or beneficiaries, the trustees are also necessary parties; the trustees have the legal interest and therefore they are necessary parties; the cestui que trust, or beneficiaries, have the equitable and ultimate interest, to be affected by the decree, and therefore they are necessary parties.” (Story, Eq., Sec. 207.) That this is the general rule, and applicable to this case, there can be no doubt; and it will be found, in the subsequent Sections of the same author, that it has never been made an available objection, that the beneficiary has been made a party; and the exception is believed to be, under peculiar circumstances, to dispense with the making all of the trustees, or cestui que trust, parties, not to their being parties. (See Head v. Teynham, 57, note 4 to Section 209, Story, Eq., and note 4 to Sec. 210, same book.) To the objection that the suit is founded on a legal title, and the legal title being in the trustees, they may enforce that legal title, without the cestui que trust, we answer that the suit is brought to enable the trustees to execute a trust, and for its enforcement through a judicial decision, and distinctions between Common Law and chancery jurisdiction are unknown to our system of jurisprudence; and that further, even if the jurisdiction should be regarded as separate, which is not the case, the suit is to enforce a trust, and the execution of trusts has always been a most prolific branch of equity jurisprudence. We regard the cestui que trust as a proper party in this suit; and there was no error in overruling the exception.

The last question we propose noticing, is presented by the claim of Mrs. Hall, under the purchase made by her at Sheriff's sale under an execution, issued upon a judgment obtained against her husband subsequently to the making of the deed of trust sued on and sought to be enforced. The suit in which that judgment was obtained, was commenced long after the date of the deed of trust. The suit was brought by Mrs. Hall against her husband, to recover the value of certain separate property, or peculiar...