Wright v. Henderson

• Decision Date: 01 January 1854
• Citation: 12 Tex. 43
• Parties: WRIGHT v. HENDERSON.
• Court: Texas Supreme Court

12 Tex. 43

WRIGHT

v.HENDERSON.

Supreme Court of Texas.

1854.

Repeated decisions of this Court have held that a mortgage is but a security, and that the title remains in the mortgagor, subject to be divested by foreclosure of the mortgage. In this respect, the deed of trust in this case does not differ from a mortgage. The possession and the ultimate right of property remained with the grantor in the deed of trust, and before the trust was executed the property was liable to execution as his property subject to the lien created by the deed of trust. (Note 15.)

Where the claimant, in a trial of the right of property, was met by the plaintiff in execution, with an immaterial issue, and the averments of the claimant did not entitle him to judgment, and a jury was waived and the cause submitted to the Court, and judgment rendered for plaintiff in execution, it was held that there was no error.

On a trial of the right of property, where there was no averment, or offer to prove, on behalf of the claimant, that the property was of less or different value from that assessed by the officer in taking the bond, and the Court awarded the ten per cent. damages on the failure of the claimant to establish his claim, on the amount so assessed by the officer, it was held there was no error. (Note 16.)

It seems that in a trial of the right of property in slaves, it is not necessary that the judgment should ascertain their separate value.

Appeal from Red River. This was a proceeding, under the statute, for the trial of the right of property levied on as the property of Carter & Dinwiddie, by virtue of an execution against them in favor of the appellee. The plaintiff in error claimed the property as the trustee appointed in a deed of trust, made by Carter & Dinwiddie, to secure the payment of a debt due from them to one Berthlett. The claimant alleged that the property was not subject to the plaintiff's execution, because of the lien upon it created by the deed of trust in favor of Berthlett. The plaintiff in execution replied that there was property included in the deed of trust, more than sufficient to satisfy the trust; and that the property was subject to his execution. The Sheriff assessed the separate value of the negroes levied on, and their aggregate value at two thousand dollars; and, on the execution of the bond for the trial of the right of property, delivered them to the claimant. The execution exceeded in amount the assessed value of the property. By consent of parties, the case was submitted to the Court, upon the evidence. The court adjudged the property liable to be sold on the plaintiff's execution, subject to the lien created by the deed of trust; and awarded ten per cent. damages against the claimant on the value of the property as assessed by the Sheriff. The claimant appealed.

Murray, Morrill & Dickson, for appellant.

Mills and Morgan, for appellee.

WHEELER, J.

The principal question presented by the record is, whether the property was exempt from execution against the grantor in the deed of trust, by reason of the trust thereby created. And we are of opinion that it was not. It has been repeatedly decided by this Court that a mortgage is but a security; and that the title remains in the mortgagor, subject to be divested by foreclosure of the mortgage. In this respect, the deed of trust in this case does not differ from a mortgage. The possession, and the ultimate right of property, remained with the grantor in the deed of trust, whose title could be completely and finally divested only by the execution of the trust. Until the happening of that event, the fee, or ultimate proprietorship, remained in the party creating the trust, and, consequently, was liable to seizure and sale on execution as his property, subject to the lien created by the deed of trust. The Court therefore did not err in adjudging the property subject to the plaintiff's execution.

It is objected to the judgment that this was not the issue presented by the pleadings. It, however, was the issue tendered by the claimant; and the fact that an immaterial issue may have been proposed by the plaintiff in execution, cannot affect the validity of the judgment, since it is evident that the Court adjudicated upon the issue presented by the averments of the claimant. He was the actor. The utmost that he could ask was that, in consequence of the mispleading of the plaintiff in execution, his averments should be taken as true, because not directly traversed. And taking the facts averred by him to be true, he was not entitled to judgment; nor was ...