71 F. 770 | 5th Cir. | 1896
The original and amended bills of complainant (a citizen of Missouri) represent that Sarah M. Simpson (a feme sole, and a citizen of Texas) is indebted to him in the sum of $7,000, with interest thereon, and $700 attorney’s fees, — said indebtedness being evidenced by seven certain promissory bonds or notes, for $1,000 each, with interest coupons, payable semiannually, atiached to each borní, the bonds and coupons bearing date December 1, 1890; that the payment of the money, with interest, was secured by a deed of trust upon the lands and premises now in controversy, and fully described in complainant’s bill; that said deed of trust was executed in favor of complainant by the said Sarah Simpson. and was recorded in Hunt county, Tex., December 3, 1890, the land in question being situated therein. Complainant further avers that he is the legal holder and owner of said notes and coupons, and that said Mrs. Simpson having failed to make the payments thereon due July, A. D. 1893, the whole of said debt., with interest as stipulated, with $700 attorney’s fees in addition thereto, has become. under and in accordance with the stipulation in said deed of trust, now due and payable; that, the premise's considered, the complainant is entitled to a judgment against Sarah Simpson herself, on The foreclosure of said deed of trust, for all the said sums now past- due. In the original and amended bills other persons are complained of. and named as defendants therein, but as the pleadings show that all of the matters complained of against the original defendants named in the bill, except Mrs. Simpson and Bush, were, in the process of the pleadings and hearing of this suit:, and by the decree therein, eliminated or dismissed without complaint on their part, we will not. herein mention them.
Complainant alleges that he makes W. H. Bush a party defendant, and asks for the foreclosure of said deed of trust: and judgment tlmmm against him, because the said Bush, as lie is informed and believes, and so alleges, is in possession of the premises described in his said bill of complaint, claiming and asserting interest in the same adverse to the complainant’s rights therein, and is illegally and wrongfully asserting title in himself superior to, and free from, the complainant’s lien. Complainant avers that: he is advised, and so alleges, that said Bush is claiming and asserting such rights thereto under and by virtue of an execution levy upon said premises made in December 20, 1893, and sale made of the same to him February 0, 1894, as the property of said Sarah Simpson, by the sheriff of said Hunt county, under a judgment rendered by the clerk of said county, March 28. 3888, against said Mrs. Simpson. Complainant alleges that no lien superior to, or in any way affecting his rights under, the said deed of trust, attached to the land or premises of said Sarah Simpson, in favor of said Bush, by virtue of said judgment, or by recording the abstract thereof. Tie alleges that the abstract of said judgment, though it does appear to have been recorded in said Hunt county, was and is void, and without any legal ('(feet against him, or the rights assigned and conveyed to him by the said Sarah Simpson in said deed of trust, because the said
Demurrers to complainant’s bill were filed in the interest of both Mrs. Simpson and Bush. The demurrers having been, as we think, properly overruled, each of them filed answers. Mrs. Simpson did not deny her liability on the obligations evidenced by the several promissory bonds or notes and deed of trust, nor does she resist complainant’s right to the foreclosure and decree prayed for; but she denies having entered into any fraudulent transactions with the said Bush, as charged in the complainant’s bill. Bush answered, denying that he was in any way guilty of the fraud charged, and his answer put at issue the facts upon which complainant, in his bill, relied for recovery against him. In his answer he alleges
It will be seen, in the above statement of the case, that the issues of fact and law disclosed in the pleadings resolve themselves into a question, as the learned judge of the circuit court stated in his conclusions, as to the priority of the lien of two debts on the same premises. The priority of the two liens, it was conceded in the argument, must be determined by a reference to the jurisprudence outlined and adhered to in the decisions in the state of Texas on the stale's statutes relating to the registration and recording of the abstracts of judgments which create a lien against property of the judgment debtor. Article 3155, Rev. St. Tex., prescribes the following essentials as necessary to create a valid lien against the property of a judgment debtor: First, that the abstract of the judgment, when recorded, shall show the names of the plaintiff and defendant; second, the number of the suit; third, the date on which the judgment was rendered, and the amount of judgment, the amount of credits, if any, and the amount due upon the same. We think the undisputed evidence relating to the registration of the abstract under which Bush claims that his lien was fixed against Mrs. Simpson’s property, described in said deed of trust, conclusively shows that said abstract is faulty in law and fact, in that it fails lo show the amount of the judgment against Mrs. Simpson; in the further fact that there are no dollar or cent marks prefixed to ihe figures which are set down in the columns to Indicate the amount of judgment; and that the said, abstract shows a disparity between the figures showing the amount of the judgment, and the real amount for which the judgment w'us rendered. The appellant, in his brief, presents a copy of the abstract relied on by him to establish and fix the priority of Bush’s lien. It is admitted that the copy shows failure, in the registration, to prefix the dollar and cent marks, and the appellant, in his brief, seems to recognize that the amount shown in the abstract varies, in a small sum, from the amount for which the judgment was originally rendered against Mrs. Simpson. The court below, passing by the objections as to the absence of the dollar and cent marks, sustained the complainant’s contention that the amount of the judgment was not correctly slated in said abstract, and concluded, for the reason last mentioned, that the abstract, as recorded, did not create a lien on the land, or furnish notice to complainant, and that the record of complainant’s trust deed took precedence of the judgment under which respondent claims. The appellant contends that the defects in said abstract, whatever they may be, were and are immaterial, because the abstract contained all things necessary to substantially comply
“The lien is a mere creation of the statute, and, to its existence, the provision of the statutes must be followed in all substantial ijartieulars. The docket must disclose the amount of the judgment rendered. Mere numericals, without any indication that they represent dollars, or other denominations of money, are not sufficient. Any omission in this particular cannot be supplied by reference to the record of the judgment. The object of the law is to make the judgment a lien upon the property of the debtor in any county where it is situated, and, as such county may be at a great distance from the one in which the judgment is rendered, the law contemplates that the docket entry shall impart knowledge of all the facts which a purchaser of the property need ascertain.”
Counsel for appellant, in support of Ms contention that the abstract shows a sufficient compliance with the law, does not advise us of any Texas áuthorities to sustain his argument, but cites us to the case of Cooke v. Avery, 147 U. S. 375, 13 Sup. Ct. 340, and says the abstract was sufficient in this case “to excite inquiry, and indicate the source of full information to the appellee, Herman P. Farris, at the time Mrs. Simpson executed to Mm the mortgage.” The case of Cooke v. Avery went up from a federal court in Texas. It was a