Wootton v. Wheeler

Texas Supreme Court

Wootton v. Wheeler

22 Tex. 338

CourtTexas Supreme Court

DecidedJuly 1, 1858

StatusPublished

Cited by23 cases

This text of 22 Tex. 338 (Wootton v. Wheeler) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wootton v. Wheeler, 22 Tex. 338 (Tex. 1858).

Pincite

Opinion

Wheeler, Ch. J.

The appellee asserted his claim to the property, under the deed of the 18th of October, 1846. That instrument is but a mortgage, with a power to sell added thereto. (4 Kent’s Com. 146 ; 16 Tex. Rep. 474.) And it is the settled 1ÚAV of this state, that mortgaged property is liable to execution against' the mortgagor, subject to the lien created by the mortgage. (Gilliam v. Henderson, 12 Tex. Rep. 47; Bullard v. Anderson, 18 Id. 377.) The mortgagee was not entitled to hold the property, exempt from liability to be taken and sold, subject to his lien, under execution against the mortgagor. The [340]*340present cannot be distinguished from the case of Wright v. Henderson, 12 Tex. Rep. 43; and Gilliam v. Henderson, Id. 47. Upon the principle of these cases, the claimant manifestly had no canse of action. And as the objection goes to the foundation of the action, the judgment must be reversed and the cause dismissed.

Reversed and dismissed.

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Wheeler, Ch. J.

The appellee asserted his claim to the property, under the deed of the 18th of October, 1846. That instrument is but a mortgage, with a power to sell added thereto. (4 Kent’s Com. 146 ; 16 Tex. Rep. 474.) And it is the settled 1ÚAV of this state, that mortgaged property is liable to execution against' the mortgagor, subject to the lien created by the mortgage. (Gilliam v. Henderson, 12 Tex. Rep. 47; Bullard v. Anderson, 18 Id. 377.) The mortgagee was not entitled to hold the property, exempt from liability to be taken and sold, subject to his lien, under execution against the mortgagor. The [340]*340present cannot be distinguished from the case of Wright v. Henderson, 12 Tex. Rep. 43; and Gilliam v. Henderson, Id. 47. Upon the principle of these cases, the claimant manifestly had no canse of action. And as the objection goes to the foundation of the action, the judgment must be reversed and the cause dismissed.

Reversed and dismissed.

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Bluebook (online)

22 Tex. 338, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wootton-v-wheeler-tex-1858.

Opinion

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