Willis v. Moore

• Decision Date: 15 June 1883
• Docket Number: Case No. 4919.
• Citation: 59 Tex. 628
• Parties: R. S. WILLIS v. LEWIS MOORE ET AL.
• Court: Texas Supreme Court

59 Tex. 628

R. S. WILLIS

v.LEWIS MOORE ET AL.

Case No. 4919.

Supreme Court of Texas.

Jun. 15, 1883.

APPEAL from Falls. Tried below before the Hon. B. W. Rimes.

J. A. Gill and Lewis Moore were farming in partnership, or together, on Moore's plantation, under a contract to divide equally the net proceeds of the crop.

Before their contract, Moore had mortgaged his plantation, and when Gill had on the place, ungathered, a crop of 1881, the land was sold under this mortgage; and the plaintiff Willis bought, and he and J. A. Gill made a contract to divide the proceeds of the crop according to the contract with Moore. Before the fund was paid over to Willis, A. J. Gill claimed it under a contract with Moore of date after the mortgage, but before the sale thereunder; and by agreement the money was deposited with H. G. Carter for whoever was entitled to it.

To recover this money, on the 18th day of February, 1882, Willis, the appellant, brought this suit against Carter, A. J. and J. A. Gill, Lewis Moore and Ransom Moore.

The cause was tried August 26, 1882, without a jury, and resulted in a judgment for the defendants, by which A. J. Gill recovered from Carter this fund.

The following were the findings and conclusions of fact and law of the court:

That on February 1, 1875, the defendant Lewis Moore was the owner and in possession of the land described in plaintiff's petition, and had thereon a cotton plantation consisting of about one thousand and eight hundred acres of land in cultivation.

On 1st of February, 1875, said Lewis Moore executed to Reed & Smith, of New York, his several promissory notes, amounting in the aggregate to $27,000, and at the same time executed his deed in trust to E. H. Graham to secure said notes, and authorized Graham to sell said land and premises at public auction for cash, in the failure of Moore to pay his notes at maturity, and to apply the proceeds arising from said sale to the payment of said notes, and convey said lands, by deed, to the purchaser and bind him in covenants of general warranty; and said trust deed also authorized the holder of said notes to appoint a substitute trustee in the failure of said Graham to act, or in event of his becoming unable to execute said trust, and gave to said substitute trustee full and ample power to sell said land, and convey the same to the purchaser, in all respects as said Graham was empowered.

This trust deed contained a provision “that said Moore or his assigns having possession of said land, will, from and after said sale under said trust deed, attorn to the purchaser or landlord, and hold as tenant at sufferance.” This trust deed was duly recorded in Falls county (where said land and plantation was situated), immediately after its date. It authorized the holder of said note to purchase at said sale.

From before the 12th of August, 1881, until after the 8th of September, 1881, said Graham was absent from the state, and unable to execute said trust. And on the 12th of August, 1881, the plaintiff, R. S. Willis, the then holder of said notes (Reed & Smith having transferred to him), in accordance with the provisions of said trust deed, appointed Thomas F. Lawson substitute trustee therein, in place of said Graham.

That on the 8th of September, 1881, said debt being due and unpaid, said Thomas F. Lawson acting in all things in accordance with the provisions of said trust deed, sold said land at public auction, for cash, and the plaintiff Willis became the purchaser, and Lawson, by his deed of conveyance of that date, conveyed said land, together with all the improvements thereon, to the plaintiff R. S. Willis.

On the 24th day of December, 1877, the defendant Lewis Moore and John A. Gill entered into a contract in writing, in and by which it was agreed that said Moore should turn over to said Gill fifteen head of mules, two thousand bushels of corn, all farming implements, wagons, plows, axes, gear, etc., on said farm and said plantation, for a period of four years beginning on the 1st of January, 1878; and said Gill was for said time to have said plantation cultivated in good and farmer-like manner, furnishing himself four head of work stock, and keep the account of expenses of the same, and have said crop grown on the land gathered, and after paying all expense of making and gathering said crop, the balance of the proceeds of said crop or the net profits arising therefrom should be equally divided between said two parties. This contract was made in the name of Ransom Moore, son of Lewis Moore, but it was in fact the contract of Lewis Moore. Under this contract Gill went into possession of said land, and each year thereafter raised on and gathered from said land crops of corn and cotton, which was managed and disposed of according to said contract, except the crop of 1881. This crop of corn and cotton was standing in the field, ungathered, when said land was sold under said trust deed; the crop consisting of some eighty bales of cotton, and a crop of corn (said John A. Gill having said land and crop in his custody, under said contract of December 24, 1877). This contract was duly recorded in the records of Falls county, immediately after its date.

After said sale, to wit, on the 14th day of September, 1881, the defendant John A. Gill, and the plaintiff Willis, entered into the following contract in writing, viz.:

“It is understood and agreed by John A. Gill, present occupant, and R. S. Willis, that the present crop of 1881 shall stand as it was with Mr. Gill and Ransom Moore, as per lease of record. That Mr. H. G. Carter will represent Mr. Willis in the distribution of the crop. That all debts of the place shall be paid as under the lease, and the overplus equally divided between said Gill and Willis.

September 14, 1881.

THOS. F. LAWSON,

For R. S. WILLIS,

JOHN A. GILL.

The above refers to the Moore place, on the Morgan headright, in Falls county.”

After the making of said contract of September 14, 1881, between said Willis and Gill, the defendant Alex. J. Gill, brother of the defendant John A. Gill, claimed to have purchased said Moore's interest in said crop, and said Gill refused to pay over to the plaintiff the one-half of the proceeds of said crop, but after some negotiations it was agreed that Gill should gather said crop of cotton and deposit the same with the defendant H. G. Carter, and sell said cotton, and after paying all expenses incurred by him in making and gathering said crop, he should take out one-half of the balance or profits, and the other half he should deposit with said Carter, to be paid over to the plaintiff on his establishing his right thereto by suit; and said John A. Gill did so gather, deposit and sell said cotton, and after paying said expenses there were left as profits for division $2,603.40, one-half of which, $1,301.70, he deposited with Carter, with the agreement before stated, in December, 1881.

On the 1st of August, 1881, while said crop was ungathered and before the land was advertised for sale, said Lewis Moore, in consideration of $1,500, sold his interest in said crop to said Alex. J. Gill, and executed and delivered to said Gill his instrument in writing as follows, viz.:

“STATE OF TEXAS, County of McLennan.

Know all men by these presents, that I, Lewis Moore, have this day bargained and sold to A. J. Gill my entire interest in the crop on my Falls county place for the consideration of $1,500 paid to me in hand.

Witness my hand this August 1st, 1881.

+----------------------+
                ¦(Signed)¦LEWIS MOORE. ¦
                +----------------------+
                

+---------------------------+
                ¦       ¦(¦WM. MOORE,       ¦
                +-------+-+-----------------¦
                ¦Attest:¦(¦                 ¦
                +-------+-+-----------------¦
                ¦       ¦(¦SAM'L CAMPBELL.” ¦
                +---------------------------+
                

Said sale was made in good faith and for a valuable consideration. Some years before, said Alex. J. Gill was informed that said Moore had executed said trust deed to Reed & Smith, but at the time of the purchase of the crop did not know whether the debt to Reed & Smith had been paid or not.

Upon said facts the conclusions of the court below, as to the law, were as follows, viz.:

The deed of trust being in the nature of a mortgage and only an incident of the debt, the paramount title to the land remaining in the mortgagor, Moore, I conclude that Lewis Moore had the right to dispose of the emblements at any time before said land was advertised and sold, and said sale of the interest of said Moore, in the crop raised on said land, having been sold by him to A. J. Gill, and said Gill having paid a full and fair consideration therefor, in good faith, the title and right thereto passed to A. J. Gill on the 1st of August, 1881, before said land was advertised to be sold under the trust deed; and the plaintiff acquired no right to said crop, or the proceeds thereof, by reason of his purchase of said land at the sale made by the trustee.

Goodrich & Clarkson, for appellant, cited Jones on Mort., sec. 780; Washb. Real Prop., marg. p. 106; Lane v. King, 24 Am. Dec., 106; 8 Wend.; Jones v. Thomas, 8 Blackf., 428; Creeve v. Pendleton, 19 Am. Dec., 750;Rankin v. Kinsey, 7 Bradwell, 215;Shepard v. Phelbrick, 2 Denio, 175; Jewett v. Kenholtz, 16 Barb., 321; Gillett v. Balcem, 6 Barb., 370;Aldrech v. Reynolds, 1 Barb. Ch., 615;Sherman v. Willet, 42 N. Y., 150;Harris v. Frink, 49 N. Y., 31; Combs v. Jordan, 22 Am. Dec., 478; Foote v. Coloin, 3 Am. Dec., 478;Butt v. Ellett, 19 Wall., 544; Price v. Hill, 24 Am. R., 542; Raysor v. Quail, 3 Am. Dec., 660; Bayer v. Williams, 32 Am. Dec., 324.

Clark & Dyer, for appellees, contending that crops were no part of the realty, and were subject to sale by the mortgagor before foreclosure, cited Hallam v. Focke & Wilkins, 1 Tex. Law Review, No. 15, p. 231 (April 24, 1883); Wright v. Henderson, 12 Tex., 44;Duty v. Graham, Id., 427;Wootton v. Wheeler, 22 Tex., 338; Freeman on Executions, § 113; Benjamin on Sales, § 120 et seq.; 1 Powell on...