Dyer v. Sullivan

18 Tex. 767 | Tex. | 1857

Hemphill, Ch. J.

The defendant in error, James S. Sullivan, who was plaintiff below, loaned to the Richmond Male and Female Academy, or to the Board of Trustees of that Academy, the sum of fifteen hundred dollars, for which fifteen certificates were issued, (as appears from the recitals of the mortgage.) The certificates were for one hundred dollars each, and one of the three sued upon in this action is copied below ; the form of the three being, totidem verbis, the same except as to the numbers :

This is to certify that J. S. Sullivan has loaned the Board of Trustees of the Richmond Male and Female Academy the sum of one hundred dollars, which is to be returned within twelve months from date hereof unto the said J. S. Sullivan, or his assigns, with interest at ten per cent, per annum from date. Richmond, Texas, January 2, 1854. [No. 11.]

J. S. Sullivan. (Signed,) C. 0. DYER, President.

C. C. Dyer is sued in this action on three of these certificates ; but whether the plaintiff intended to hold Dyer personally liable,' or to hold the Academy liable, is not very clear, from his pleading. He shows quite plainly, in fact, that Dyer is not liable individually on this contract. He represents that the “Academy ” is indebted to him in the sum of three hundred dollars, for that he loaned the said “ Academy ” the sum of three hundred dollars, the payment of which was secured by. certificates issued by Dyer, as President of the Board of Trustees of the said Academy, and also by mortgage executed by Dyer, as President as aforesaid, on said Academy and two acres of ground upon which the same is located; that the money was loaned to Dyer, as President as aforesaid, to assist in completing said Academy, and that Dyer was fully authorized to make and issue said mortgage and certificates, by a resolution of the Board of Trustees of the said Academy.

It does not appear from the petition, whether this institution-is incorporated or not. One thing is certain, from the averments, and that is that Dyer was acting as agent, either-of the Board of Trustees or of the Academy, and in no sense in his individual or personal capacity.

There was a judgment by default in the cause. This is exceedingly imperfect. The cause of action being liquidated, the Clerk was ordered to assess the damages ; which he did, but no judgment was entered for the recovery of the amount; and were this all that had been done, the writ of error must, for the want of a final judgment, have been dismissed. But there was judgment for the sale of the-property specified in the mortgage," and this though not pursuing the Statute, has such finality as would sustain an appeal to this Court. It is not very clear whether the judgment is against Dyer, or against whom or what it was entered. But Dyer has brought it up and assigns,

1st. That the petition discloses no cause of action, on which the property of the Academy could, by decree, be subject to sale.

2d. That there was error in decreeing a sale of the land mortgaged, without having rendered a judgment for the debt.

And there are other assignments, to the effect that the decree does not conform to the Statute, and that there was no judgment for the debt.

There plaintiff in error suggests in his brief a new ground, to the effect that as the petitioner alleges an indebtedness to the plaintiff below, on the part of the Richmond Male and Female Academy, and that Dyer, as President of the Board of Trustees or agent, executed the certificates and mortgages, the action should have been brought against the Board of Trustees and not the agent.

Had the action been positively against Dyer in his personal character, and judgment been entered against him as such, this assignment not being taken below might have been too late. But the petition, by its averments, shows that Dyer is not liable personally, nor is he positively sued, or judgment prayed against him in his personal capacity. The petition, in its commencement, complains of Dyer, President of the Board of Trustees of the Richmond Male and Female Academy, and after making allegations which negative any personal liability on the part of Dyer, it prays for citation to him, and that plaintiff have judgment for debt, interest and costs, and for foreclosure ; but does not pray distinctly that judgment be against Dyer individually.

This petition, on the whole, though wanting consistency and precision in its averments, may be taken as not intending a personal action against Dyer, but as against the Academy ; its special object being to foreclose a mortgage on the ground belonging to the Academy.

If this institution be incorporated, the proceedings, being against the President, may for aught that appears, be in proper form. The directions of the Charter, if it be incorporated, should have been pursued, and there being no evidence or plea to show that the suit has not been properly brought, or that the money is not really due, we must hold that the action is in due form, and that there is sufficient matter in the petition to authorize judgment against the Academy, and for the sale of the property under mortgage.

But as the judgment is defective, it is ordered that the same be reversed and that judgment be rendered in this Court.

Reversed and reformed.