Manwaring v. Terry

39 Tex. 67

• Court: Texas Supreme Court
• Decided: July 1, 1873
• Status: Published

Opinions

Ogden, J.

The facts of this case are somewhat peculiar and complicated, requiring a close mathematical calculation, in order to the proper solution of the respective rights of the parties interested. The facts as established by the proof and admissions of the parties are as follows: In 1860, Gier & Grier being equal, owners of two tracts of land in Marion county, one known as the Mason survey, containing about 2047 acres, the other known as the Gier & Grier survey, containing 75 acres, Gier conveyed his undivided half interest in the two tracts to C. A. Buckley. Six days afterwards Buckley conveyed one-half of his interest to Sutton & Pettingill, and in 1862 Buckley mortgaged to Gohlman an undivided half interest in the Mason survey, when in fact he owned but a one-fourth interest.

On the sixteenth of August, 1862, Sutton reconveyed to Buckley his interest in the land acquired by his and Pettingill’s purchase of 1860. This last conveyance gave Buckley, with what he previously owned, the legal title to an undivided three-eighths of the entire tract; but as he had executed a mortgage upon one-half of the tract when he owned but a one-fourth, his after-acquired interest from Sutton became subject to the Gohlman mortgage. The title to the two tracts of land at this period was one-half in E. Grier, three-eighths in Buckley and one-eighth in Pettingill; but Buckley’s three-eighths in the Mason survey was incumbered by the Gohlman mortgage. In December, 1862, Buckley, by a quit-claim deed, assigned to John H. Sutton all his right, title and interest in and to three-eighths of the .two tracts of land in controversy. By this, assignment Sutton received an unincumbered three-eighths of the Gier & Grier survey, and three-eighths of the Mason survey incumbered with the Gohlman mortgage.

The character of the title received by him and the circnmstanoes attending these several conveyances show most clearly that Sutton, at the time of his last purchase, was fully aware of the mortgage, and that the assignment by Buckley was made with the certain knowledge of all parties that Sutton took the conveyance subject to the mortgage lien. It is very clear that Buckley, by a transfer of the mortgaged property, could not thereby defeat the lien; and as he then conveyed his entire interest in the two tracts of land, the mortgage lien followed the legal title into the hands of Buckley’s vendee, and was no longer a mortgage upon Buckley’s, but Sutton’s property; and the mortgage having become attached to that particular interest, held the lien over it, regardless of who might become the owner of the legal title. And when Sutton and Pettingill conveyed to Mrs. Terry by joint deed, she received a title to one-half of the Grier & Grier survey, unincumbered, and an undivided half interest in the Mason survey with the Gohiman mortgage resting upon three-fourths of her interest.

The fact that. Buckley, in 1863, purchased Grier’s undivided half interest in the two tracts of land could by no means relieve the interest of Sutton from the mortgage lien. He knowingly purchased an incumbered title, and he had no right, under any circumstances, to demand a perfect one ; and as his interest in the Mason survey was incumbered by the Gohiman mortgage, he could make no perfect title to Mrs. Terry, except by discharging the mortgage lien. This he did not do, and as he conveyed to Mrs. Terry an imperfect title, with covenant of warranty, Mrs. Terry cannot demand or expect a better title than she bought of Sutton, but she may rely on his covenants of warranty for damages resulting from any imperfection or failure of title; she is chargeable with notice of her vendor’s title, and that was a mere quit-claim, subject to the mortgage.

It is unnecessary to notice ¡the claims of Keen and Manwaring and Hutchison, as to the other half of the two tracts of land, as their interests have been settled by a compromise filed in the court below, and very properly made a part of the decree of the court.

There is now no controversy excepting as to Mrs. Terry’s interest in the land, and as three-fourths of her half interest in the Mason survey has been sold to satisfy the Grohlman mortgage, she has remaining only one-fourth of one-half, or one-eighth of the Mason survey, and one-half of the Grier & drier survey, to which she will be entitled on a proper division of the two tracts.

The judgment of the District Court is reversed, and the cause remanded, that a judgment may be entered in accordance with this opinion, and that an equitable partition may be made under the directions of the court among the respective owners.