78 Tex. 222 | Tex. | 1890
The Henrietta National Bank, then being in the hands of a receiver, held a note claimed to be secured by a trust deed on about 15,000 acres of land. The British-American Mortgage Company had a mortgage on the same land to secure a much larger debt.
To make this contract the receiver had no authority from any court nor from the Comptroller of the Currency who appointed him.
After the contract was made there seems to have been an effort to sell the land under the trust deed held by the bank, which was prevented by a writ of injunction sued out by the British-American Mortgage Company.
Appellant rendered some services in reference to this matter, but the mortgage company foreclosed its lien on the land, and the Merchants National Bank at the foreclosure sale became the purchaser.
After the Merchants National Bank bought the land a suit was instituted by it against the Henrietta National Bank, which seems to have been compromised by an agreement that the last named bank would pay one-half of the costs and release its claim of lien on the land.
The consideration from the Merchants National Bank was a conveyance to the receiver of the Henrietta National Bank of the 153 acres of land and part of the lot in controversy in this action, which was no part of the land on which the two banks claimed lien, but land to which the Merchants National Bank had acquired title through another source.
The agreement between the receiver and appellant contained a provision “that no compromise is to be made without the consent of L. C. Barrett and the Henrietta National Bank.” The court below held that the receiver had no lawful power to make the contract on which appellant relies for title, and we are of opinion that this ruling was correct. The receiver had power to employ counsel to represent him in such litigation as he déemed necessary, and to pay the reasonable value of such services, but he had no power to make such an agreement as was made.
In Terrell v. Teal, 48 Texas, 509, it appeared that an administrator had agreed to convey as a fee to an attorney a tract of land belonging to the estate. This was done, and the conveyance approved by the Probate Court, but this court held that the administrator had no power to make such a contract, and that the decree of the Probate Court gave no validity whatever to the deed. It was said that “to concede to administrators such power would virtually surrender to them the unrestricted management and disposal of the entire property of the estates they represented.”
The law regulating the appointment of receivers of the property of national banks and declaring their powers and duties does not recognize the existence of such a power as the receiver in the matter before us attempted to exercise. As the contract referred to is the sole basis of appellant’s right, he can not recover further than he did on the disclaimer of appellee,
In the contract between the receiver and Barrett it was recognized that the Exchange Bank of Dallas had claim to an interest in the mortgaged lands equal to that held or claimed by the Henrietta National Bank, but the Exchange Bank was not a party to that agreement. That contract further recognized that the Exchange Bank should have one-half of the lands or money recovered in the contemplated litigation through the suit or by compromise. The Exchange Bank made itself a party to this action and claimed the land sued for by Barrett, but offered no evidence of its right other than such as may have been recognized in the contract between the receiver and Barrett. That contract evidently had reference ■only to the lands on which the two banks were claiming liens or other interest, and was not made for the purpose of evidencing any right of the Exchange Bank, but in so far as it referred to any interest of that bank this was done for the purpose of restricting Barrett to an interest in such recovery as might be had by the Henrietta National Bank. If the Exchange Bank had any interest in the land in controversy that fact should have been proved, and the mere declaration of the receiver, not made with " intent to evidence a right of that bank in or to any interest in land, would not be evidence of such right, even if his power to have made a conveyance to the Exchange Bank was shown.
So far as the record shows, all the consideration for the conveyance through which the Henrietta National Bank claims the land in controversy moved from that bank, and no right or claim which the Exchange Bank may have held on the mortgaged lands is shown to have been relinquished or in any manner affected.
The Exchange Bank not having shown any title to the lands in controversy, the court did not err in so adjudging. There is no error in the judgment, and it will be affirmed.
Affirmed.
Delivered October 21, 1890.