Miller v. Rogers

49 Tex. 398

• Court: Texas Supreme Court
• Decided: July 1, 1878
• Status: Published

Opinion

Roberts, Chief Justice.

The ease was submitted to the court without a jury, and judgment was rendered that there was $20,477.32 due to plaintiffs, as heirs of E. B. Miller, on the notes secured in the mortgage executed by Herron to E. B. Miller, and that the 500 acres of land sold by Herron to A. S. Miller should be sold to pay the same, by virtue of the mortgage. From this judgment the defendants appealed.

The record contains a statement of facts, and one exception to the evidence, as to a sale of land in Gillespie county after the judgment had been pronounced.

1st. This judgment, as rendered by the court, leaves out of the case Thomas M. Harwood, administrator of the estate of E. B. Miller, it may be, on two grounds: first, that he had no interest, as shown by his own pleadings, and was an unnecessary party; and, second, that his administration in Gonzales county was without jurisdiction, and unnecessary, as shown by his pleadings.

2d. It leaves out the name of Ann E. Rogers, wife of John S. Rogers, as it may be presumed, by clerical mistake, her husband’s name being included in the judgment as one of the plaintiffs.

3d. It disregards the claim of superior legal title to the land set up by the plaintiffs, upon which they sought to recover the land in the original and amended petitions.

The grounds for this claim of title may be noticed under three heads.

1st. That A. S. Miller held only a bond for title from Herron, executed in January, 1852, and recorded about the same time, who, when he executed it, had only a bond for title from E. B. Miller, executed in December, 1851, and never recorded ; that E. B. Miller executed a deed to Herron for this, and a large amount of other lands, in May, 1852, and on June 16, 1852, took up his bond, and on the 16th of July, 1852, took a mortgage back of all of the same lands for the payment of the three notes, the same in amount (about $17,000) as. originally given for the land. The mortgage was recorded in 1852, and notes acknowledged twice afterwards, the last time in 1858. The deed was recorded in 1854. The petition alleges that the deed and mortgage were executed at the same time; but there is no evidence to fully explain the difference in the dates of the deed executed in May, 1852, and the mortgage executed on the 16th of July, 1852, without which the rule in Dunlap v. Wright, 11 Tex., 600, and subsequent cases following it, would not apply, so as to prevent the deed from E. B. Miller to Herron, in May, 1852, from conveying the legal title, and divesting it out of E. B. Miller.

2d. A title by sheriff’s deed, dated the 4th of February, 1868, to Thomas M. Harwood, for the benefit of the E. B. Miller heirs, sold as the property of A. S. Miller, under execution issued upon a judgment rendered against him on the 22d of October, 1866, which land was released to the said E. B. Miller’s heirs, hy Thomas M. Harwood, by deed.

The defense set up to this was a transfer by A. S. Miller to his children, the other defendants, of the land in controversy, by deed of the 2d of October, 1866, in consideration in part of their interest in their deceased mother’s community estate.

And to this the plaintiff" replied, that the deed was voluntary, and made in fraud of his creditors. Hpon this issue there .was much proof adduced on both sides, so as to make a decided conflict of evidence. To this title under the sheriff’s deed, the defendants also set up the bankruptcy of A. S. Miller, he being alleged to have been adjudged a bankrupt on the 29th of February, 1868, and discharged on the 4th of February, 1869. It is not perceived how this plea of bankruptcy could defeat, a title perfected on the 4th of February, 1868, by sheriff’s deed.

3d. A title by purchase of Thomas M. Harwood, for the benefit of E. B. Miller’s heirs, at administrator’s sale, under a foreclosure of the mortgage executed by Herron to E. B. Miller, by the Probate Court of Guadalupe county, acting upon the estate of Andrew Herron, in 1868.

The objections made to this title, are that Herron had sold and been paid for this land long before his death; it was not inventoried as part of his estate; and neither A. S. Miller nor his vendees, his children, had notice of and were not parties to the proceeding for foreclosure, and are not bound by it, and, as against them, it vested no title to the land in Harwood, or in E. B. Miller’s heirs, when the land was sold under it. (Buchanan v. Monroe, 22 Tex., 537; and subsequent case of Byler v. Johnson, 45 Tex., 509, and others.)

There may be also an objection, as it appears from the record here, to all of these grounds of claim of title to the land by the plaintiffs, as heirs of E. B. Miller, that it appears in the pleadings and evidence that E. B. Miller made a will, which was probated in Virginia, and that letters of administration with the will annexed were taken out by H. H. Marshall, and the will was recorded in Guadalupe county, in Texas, and it is nowhere shown that plaintiffs were devisees of this land.

This defect in the proofs, unexplained, might equally be an objection to a recovery on the mortgage hereafter referred to and considered.

4th. The judgment, as rendered, is based upon the fight, adjudged to have been established upon the trial, of the plaintiff's, as heirs of E. B. Miller, under whom all parties claim, to enforce the mortgage executed by Herron to E. B. Miller on the 16th of July, 1852, upon about 11,000 acres of .land, in different tracts, to recover the balance of the three notes (of about $17,000) secured by said mortgage, still due from the estate of the mortgagor, Andrew Herron, and to subject this tract of 500 acres, as part of the mortgaged lands, to the payment of said balance.

If this had been the only tract of land included in the mortgage, there would be less difficulty presented in the case. But, instead of that, Herron sold this tract, first of all, to A. S. Miller, and afterwards sold a large tract off of the same grant to William Means, and he, said Means, sold part of it to the Smiths and to Brodnax. And by the evidence we find that other tracts had been sold to White and other persons; and it is not rendered very certain what tracts had been sold by Herron before his death. Some of the land so sold was paid for to the plaintiffs, and there were compromises about other portions of the laud, and some of it was.taken back. A part of the land was sold in 1868, under the administration of Herron’s estate, and bought in for the plaintiffs by Harwood. It is certain, therefore, that at the time this suit was brought for the recovery of the land, in 1869, and by an amendment of the petition alternatively to foreclose the mortgage, filed on the 5th day of May, 1873, there were a number of persons occupying and claiming under plaintiffs, directly or indirectly through Herron, large portions of the mortgaged lands, and other large portions of it had been obtained, by compromise and by purchase, by the plaintiffs, through Thomas M. Harwood.

Neither the administrator nor any of those persons so claiming and holding such lands were made parties to this suit of foreclosure, although the fact of there being such claimants was set up by the pleadings of both sides, in their allegations, showing how the lands had been disposed of by Herron, and the administrator of his estate, and by others who had acquired interests in them.

The assignments of error have reference to such errors of law, relating to the suit as a foreclosure of the mortgage, as were believed to have been committed by the court in arriving at such a determination as that which is exhibited in the judgment rendered, concluding with the general assignment, that “the judgment of the court was contrary to the law and evidence in the case.”

Hnder this assignment may be considered the main question in the case as it was decided. The amended petition, in setting out a cause of action upon the mortgage, and in showing that there was still an amount of money due on the notes secured by it, stated fully the facts, exhibiting the whole history of this transaction, embracing the matters that have just been referred to; and in seeking a foreclosure of the mortgage on the 500 acres of laud originally sued for, concluded by praying for a “judgment against said defendants for the pro-rata value of said land, taking the said original mortgage from said A. Herron to the said E. B. Miller for the basis, and estimating from it the amount due, with interest, of the purchase-money of the land in controversy ”; or that judgment be rendered for $2,000, with eight per cent, interest, taking the sale from Herron to A. S. Miller as the basis; and for a decree for “ the sale of said land, as under execution, to satisfy the judgment so ascertained.”

The defendants, in answer to this, pleaded that the plaintiffs had already received amounts, by collections, compromises, and sales of the land, stating them, sufficient to satisfy the whole of the debt secured by the mortgage, and that therefore this land should not be sold at all. What plaintiffs prayed for, if this issue should be found for them, was either an amount (with interest) equal to the value of the 500 acres, compared to the value of the whole of the land included in the mortgage, which, supposing the land to have been sold by the acre, would be about $770 and interest, there having been 11,369 acres sold for $17,625; or $2,000 and interest, the amount of the price paid by A. S. Miller to Herron.

Hpon neither basis, in estimating the amount for 'which plaintiffs sought to render this tract of land liable under the mortgage, could the amount of $20,477.32, for which the judgment was rendered, be reached. By such a judgment, the plaintiffs subjected the land to the payment of a greater amount than they prayed for, and the defendants were placed in a position of not being able to redeem the land, without paying more than plaintiffs claimed it to be liable for, if not greatly more than it was worth.

This, upon the theory upon which the case was tried, under the amended petition of plaintiffs, seeking a foreclosure of the mortgage, was erroneous.

5th. If plaintiffs, under their prayer for general relief, were entitled to recover whatever amount might he due them, and subject this land to the payment of it, notwithstanding their prayer for a smaller amount, then it may be said that the manner in which the amount adjudged was found, according to the evidence upon which it was predicated, was not correct, in reference to the equitable rights of the defendants. In considering this proposition, it is proper to premise, that ordinarily, when in a suit land is shown to have been mortgaged to secure a debt, it must be held liable to be sold for the payment of such debt, or of so much of it as remains unpaid when the suit is brought; and if there is any reason why it should pot be made subject, or subject only upon conditions or with qualifications, such reasons should be set up in the pleadings of the defendant. If, however,.the plaintiff, in stating his cause of action, states facts showing that the land sought to be charged by the foreclosure had been sold by the mortgagor, that other lands were likewise embraced in the mortgage, some of which had been sold by the mortgagor to other parties and some not, then the plaintiff) by his own pleadings, has brought into operation rules of equity which may make his rights dependent upon an adjustment of the .relative rights and obligations of others who hold portions of the mortgaged property, the same as though such facts had been set up in defense by the defendant; and must be regarded, on the trial of the case, in connection with such other facts pertinent thereto, or issues made upon them, as may be set up by the defendant in his pleadings. (Ayres v. Cayce, 10 Tex., 108.)

Such additional facts were set out in the plaintiffs’ amended petition, and such other additional facts pertinent thereto were set out in the answer of the defendants in this case.

Citing the above case for authority, it was said in the case of Wright v. Wooters, that “if there was a mortgage duly recorded, but including other tracts of land, and if that mortgage is still in force, not waived or released, certainly the plaintiffs are entitled to enforce it; but the defendant may claim, unless" good reason be shown why the same should not be done, that the other mortgaged lands be subjected also, or that the land in his hands be subjected only to its proper proportionate amount.” . (46 Tex., 883.)

Another rule of equity is, that where a part of the lands are still in the hands of the mortgagor, they should be sold first before those sold by him are resorted to in a suit to foreclose the mortgage, all of the parties holding any of such lands being properly made parties to the suit. (Ayres v. Cayce, 10 Tex., 108.) And, further, it has often been held, with some conflict of authority, that, as between different parties who purchased land from the mortgagor before such suit, the lands of the last purchasers shall be successively and inversely resorted to before the lands of the preceding purchasers, and that the priority of the liability of the respective tracts of land should be settled in the decree of foreclosure, all of the interested parties being brought into court in the same suit for that purpose. (Rorer on Judicial Sales, secs. 195, 196,197; 2 Story’s Eq. Jur„, sec. 1233, and cases cited by each.)

If plaintiffs had brought a suit to foreclose the mortgage in the District Court of Guadalupe county, before any payment by Smith and compromises with Brodnax, Smith, and White, and had made Herron, A. S. Miller, William Means, Smith, Brodnax, White, and other purchasers from Herron, or others, if any, parties to the suit, then a decree might have been rendered, subjecting all of the mortgaged lands to the payment of the debt secured by it, which, according to rules in equity that have been announced, would have required the lands to be sold in the order indicated by them, to wit: first, those held by Herron in Gonzales county, (88|- acres,) and in Guadalupe and Gillespie counties; (7,342.acres]) then those sold to Means, and by Mm to others, (about, as supposed from what appears in evidence, 3,793 acres,) making in all, approximately, 10,869 acres; and last of all, the 500 acres first sold to A. S. Miller, which should not have been sold at all, if, as most likely would have been the case, the preceding sales would have amounted to enough to pay the debts, and costs of the suit.' That being the proper course to have been pursued with reference to the equitable rights of A. S. Miller, and plaintiffs having neglected to pursue it, but having adopted a different one, they should not be allowed in this suit to subject this land, sold to A. S. Miller, to be sold otherwise than by giving him equal advantages, and preference of exemption, as if the proper course had been pursued. Any other rule would not only be inequitable in itself, but it would be putting him or his vendees to a prejudice without their fault, by the fault of the plaintiffs. And if that cannot now be done, and be shown with reasonable certainty to be done, by any mode that may be adopted in this suit, then the plaintiffs, it would seem, have placed themselves in a position to be beyond any relief in _ a court of equity as to this land. We have been cited to no authority pointing out how this can be done without a sale of the whole of the land. It is very evident that the sale made by the administrator of A. Herron, in 1868, of all of the land, did not bind A. S. Miller or his vendees, because they were not parties to the foreclosure of the mortgage in the Probate Court.

Hor are he or they bound by the sales of the lands of Smith, Brodnax, and White under said foreclosure, because they were not bound by it, not being parties to it. (Rorer on Judicial Sales, sec. 199; Preston v. Breedlove, 45 Tex., 47; Byler v. Johnson, 45 Tex., 509.) The defendants were not bound by the compromises made with Brodnax, White, and Smith. It was not shown on the trial that the lands in Guadalupe and Gillespie counties brought a fair price at said sale, and it is certain that those in Gonzales did not sell for nearly as much as they had been sold for previously; and it is not shown how White became the owner of part, of the Gonzales land, or what amount or to whom he had paid for it.

Notwithstanding all these things, said probate sale, and the said private arrangements made by the plaintiffs with others, were made the basis of estimating the amounts that should be credited upon the debt secured by the mortgage, and the amount still due for which defendants’ land was held liable under the mortgage.

Without going into a more minute examination of this subject, Jt will suffice to say, that it has not been made apparent on the trial that these transactions have placed the defendants in a position of equal advantage, as if the regular and usual mode of foreclosing a mortgage, where other persons than the mortgagor and mortgagee have acquired rights in the property mortgaged, had been pursued. In such a case, it has been well established, by the authorities previously cited, that suit for foreclosure of the mortgage should lie brought in a court competent to adjust all of the equities; and all of the parties having such interests should be included in the same suit. If plaintiffs had relied upon their legal right to maintain the suit of trespass to try the title to the land as originally brought in 1869, no other parties than the defendants need have been made, so far as the plaintiffs were concerned; but when plaintiffs chose to turn it into a suit for the foreclosure of the mortgage, by the amended petition filed in 1873, which, so far as that remedy was concerned, was an abandonment of the validity of the previous foreclosure in the Probate Court of Guadalupe county, we see no good reason why the well-established rule should not then have been followed, by making the administrator of Herron, and all other parties who had then acquired any rights in the mortgaged lands, parties to this suit, so as to have had the defendants’ rights settled, in reference to theirs as well as in reference to the rights of the plaintiffs.

There are other questions presented by the special assignments which would require serious consideration, if it were necessary now to decide them.

One of them is, whether or not any lien exists upon this land under the mortgage, as the facts are presented in this record, the land having been sold by Herron to A. S. Miller by bond for title recorded, and the purchase-money being partly paid; this, with the other lands, having been deeded afterwards by E. B. Miller to Herron, and several months afterwards mortgaged by Herron to E. B. Miller ?

Another one is, whether or not the acknowledgment, in writing, of Herron of the notes, in 1854 and 1858, and the acknowledgment and approval of them afterwards, as valid claims against the estate of Andrew Herron, will have the effect to prevent the statute of limitation from running against the notes as to A.'S. Miller, he having acquired the legal title and paid the purchase-money, subject to the mortgage as it existed in 1856, and this suit to foreclose the mortgage on this land, in satisfaction of said notes, being instituted by the amended petition in May, 1873 ?

Without deeming it necessary to refer to any other questions, we hold that the judgment as rendered is not responsive to the remedy as sought by the plaintiffs, in their suit to foreclose the mortgage, and the evidence on the trial was not adapted to said remedy as sought, nor capable of sustaining it as it was set out and prayed for in plaintiffs’ amended petition ; and for this error the judgment is reversed and the cause remanded.

Reversed and remanded.