Burgess v. Millican, 50 Tex. 397

Burgess v. Millican

50 Tex. 397 | Tex. | 1878

Moore, Chief Justice.

It was decided by this court in the case of Dunlap v. Wright, 11 Tex., 597, and has ever since been regarded by it as settled law, “ that when a mortgage for the payment of the purchase-money for land is executed simultaneously with the deed by which it is conveyed, the vendor has, until the purchase-money is paid or the mortgaged foreclosed, the superior right; and if the vendor go into possession after the vendee has made default, he cannot be turned out by process of ejectment or trespass to try title, notwithstanding the claim for the purchase-money may be barred by the general law of limitations.”

Having cited and commented upon a number of cases in support of its. conclusion, the court says : “ The effect of the principles in these cases is that the vendor’s deed may be absolute; yet if a mortgage for the purchase-money be given back at the same time, the fee will absolutely remain in the vendor. The sale will be but conditional, the ultimate right of the fee depending upon the performance or non-performance of the conditions. If the purchase-money be paid, if the mortgage be satisfied, the seizin will be regarded as having been in the vendee ab initio, or from the date of the purchase. If not paid, the vendor will, in the language of Stow v. Tifft, 15 Johns., 458, be reseized free of the mortgage.”

Whether the conclusion reached by the court can correctly be said to result from the giving of a mortgage, where it is-not recognized, as at common law, as a defeasible conveyance of land, but is merely held to be—and rightly, under our statutes, (Act of May 15, 1838, vol. 2, p. 134; Act of February 5, 1840, vol. 4, p. 69)—a moneyed obligation secured by a lien upon land, is not now a matter for consideration. The views expressed by the court in Dunlap v. Wright have too long and too often been recognized and approved to be now questioned. Does, then, the fact that the sale in question in this case was made by an administrator, by order of the Probate-Court, and that the statute requires the purchaser to give-*402personal security as well as a mortgage upon the land, alter the construction and effect of these simultaneously-executed instruments, which, by a familiar rule, are to be construed together as mere parts of an act or agreement ? Certainly it has never been supposed or intimated in any of the previous cases that the taking of personal security for the purchase-money, when the vendor is acting for himself, will change the construction which would otherwise be given to the deed and mortgage; and we see no reason why it should be thought to do so when he is acting as a trustee for others. To hold that the deed of an administrator and mortgage of the purchaser, simultaneously executed, were not to be construed together and taken as the several parts of one transaction, and that when thus considered they should not be construed to have the same effect as if the vendor was acting in his own right, would be to make an invidious distinction against estates, for which we can see no just foundation, either in the spirit or policy of our laws regulating the settlement of estates of deceased persons.

To maintain the correctness of the judgment of the court below in this particular, we are cited by appellee’s counsel to article 1327 of Paschal’s Digest, which, after declaring the time and manner in which administrators shall make report of sales made by order of the court, and providing for the action of the court thereon, says: “After any such decree of confirmation shall have been made, upon the purchaser complying with the terms of sale the executor or administrator shall execute and deliver to him a conveyance of the property so sold, if it were either land or slaves, reciting therein the decree confirming the sale and ordering the conveyance to be made, which conveyance of land or slaves so made, shall vest the right and title that the testator or intestate had in the purchaser, and shall beprima-fade evidence that all the requisites of the law have been complied with in making the sale.”

The necessity or appropriateness of a statutory provision *403such as this is certainly very obvious, when it is remembered that the personal representative has no title or interest in the property of the estate sold and conveyed by him, but that title to it, immediately on the death of the owner, is cast upon, or vests in, the heirs or devisees, subject to be divested by the court for the purposes of administration. The statute, it is true, says the deed of the administrator, after the confirmation by the court, shall vest in the purchaser the right or title of the testator or intestate; but evidently it was not the purpose of the Legislature in its enactment to define or prescribe the characteristics or incidents of the estate thereby vested in him. It imparts no more than what the court says, in Dunlap v. Wright, results from the deed and mortgage inter partes, viz.: “If the purchase-money be paid, if the mortgage be satisfied, the seizin will be regarded as having been in the vendee ab initio, or from the date of the purchase.” But though seizin or title vests in him by the deed, it is nevertheless lost to or divested out of him by his refusal or failure to comply with the terms or conditions upon and by which it was acquired.

If these views are correct, it necessarily results that appellant got by his deed from the heirs of Mrs. Collie a superior right to the land of appellee after his default upon the mortgage ; that by virtue of this superior title he ivas prima-faeie entitled to take and hold possession against appellee, and to maintain an action to be quieted in his possession, and for the removal of the cloud cast upon his title by the claim set up to the land by appellee under the administrator’s deed. But it may be well enough for us to add, that we are not now called upon to determine whether or not appellee, notwithstanding his default upon the mortgage, may not be permitted by a court of equity, on a proper appeal to it, to still discharge the mortgage. Hence we are not to be understood as having intimated any opinion regarding it, if in any future stage of this litigation such a question should be presented.

There are other points of interest presented in the record, *404but, as it is thought that what has been said will probably render their discussion unnecessary, we need not now notice them.

The judgment is reversed and the cause remanded.

Reversed and remanded.