32 Tex. 231 | Tex. | 1869
This is one of those cases which depends mainly "upon the evidence for its determination in this court.
This suit was brought by the assignee of two notes, executed and delivered to Samuel Lawler by the intestate of the appellees, on the 5th day of January, 1855, for the sums of $1000 and $40 respectively, and secured by a mortgage, of even date with the notes,. on 1500 acres of land. The defense is, substantially, payment of the notes sued on, by the sale of a tract of land containing 434|- acres, by the obligor to the assignee, the purchase money of which was applied in liquidation of the indebtedness. If the payment was so made, it has become a complicated question, from the assignment and transfer of the notes and mortgage having taken place five days subsequent to the date of the written evidence of the contract of sale of the land. The bond for title to the land bears date January 26th, 1855; and the assignment of the notes and mortgage bears date January 31st, 1855. Besides which anachronism, if it be a payment, there is, in the title bond of the vendor, an acknowledgment of the receipt of $1800 of the purchase money for the land; rating the price of the land at five dollars and a half per acre, and reserving the residue of the purchase money to be determined by a future survey. This state of facts, as shown by the written evidence, complicates the question, and must be explained by oral testimony to relieve it of embarrassment.
It may be affirmed, that, as a matter of law, generally settled in American courts, this recital in the title bond is not a conclusive presumption of payment. At most, it is only prima facia evidence of the amount paid; or, that there was any payment at all. Whether in a deed, or a title bond, in an actual conveyance, or an obligation to convey, the consideration may be inquired into; and the grantee may recover back
The court is satisfied, according to the well settled law of the land, that, in defense of the action upon the notes and mortgage, the party was authorized to go into an explanation of the recital of payment, in the title bond for the conveyance of the land. It was alleged in the answer that the land had been sold to the assignee of the notes, in consideration that he would pay off the notes, and thus release the mortgage. And this was the line of defense adopted. It was insisted that, in fact and in truth, the plaintiff, in purchasing and paying for the notes and mortgage, had in this way paid the purchase money for the land, and thus became entitled to a credit pro tanto with his vendor upon his purchase of the land, and that the acknowledgment in the bond had been made in contemplation and in anticipation of the settlement of the notes by the vendee—that no money was actually received by the vendor.
Upon the setting up of this defense, the plaintiff reaffirmed his cause of action by an amendment of his petition, in which ho asked a specific enforcement of the contract of sale according to the title bond, and the correction of an alleged mistake
If the notes were a subsisting debt at the time of the institution of the suit, not barred by the statute of limitations, the mortgage, executed cotemporaneously to secure their payment, was still valid, as long as the debt remained unsatisfied. No matter at what time the power of the court was invoked for its correction and foreclosure, and for a decree to subject the mortgaged property to the satisfaction of the debt, it was opportune, if the jurisdiction of the court over the debt itself was not ousted. The mortgage was but an incident of the debt; and the incident, in law as in logic, must abide the fate of its principal. It is always a question of fact, as to what may be the mortgaged premises. The mortgage is valid so long as the debt subsists. And at the time of adjudication the court is bound to determine what premises are to be sold; and the- ear of the court ought always to be open to hear, and its hand ready and prompt to act upon and correct any mistake or error which may be made manifest by proof, up to the moment of its final decree. Whenever the facts are so presented, the court must take cognizance of them, and remove every obstruction ; yet, in such a manner as not to compromit the rights of strangers to the record. The statute of limitations does not affect the question.
It is certainly true, as asserted by counsel, that, by the common law, all sealed instruments, deeds, etc., import a consideration. And it is also true that, in its strictness, it would forbid an inquiry into the truth of the recitals in a deed. This doctrine still obtains in England, and in one or two of the American States, where they have no such statutes as our statute of 1858. With them the recitals in a deed are conclusive upon the parties to the deed. But American authority generally, in regard to recitals in deeds, is adverse to the Eng
The well settled principles of the lavv, therefore, authorizing an inquiry into the truth of the recital in the written contract, upon the subject of consideration, and an investigation of its nature and character, though it purports to have been a payment in money, it is necessary to examine the evidence adduced on the trial, to determine upon its weight and sufficiency to counterbalance, or modify, or explain the acknowledgment of payment in the title bond. And here it may be remarked, that it is a rule of laAV, when suspicion is thrown, by any proof, however slight/ upon the recital in the instrument, the burden of proving how the payment was made, is devolved upon the party claiming the benefit of such payment. This proof was not made, but the party rested upon the recital in the bond, coupled Avith the admissions offered as rebutting evidence to the proof adduced by the opposite party, shoAving affirmatively how that payment was made.
The eAÚdence is composed of the depositions of ten living-witnesses, Avho Avere called upon to testify some ten or eleven years after the occurrence of the incidents of which they speak
How, this testimony,' if true, shows conclusively, that Cannon’s liability on the notes was released, the debt extinguished, and the mortgage, as an incident to the debt, was released with it. The testimony of the other witnesses, as to verbal admissions, made sometime afterwards by Cannon, is of that vague, unsatisfactory character which renders it peculiarly obnoxious to that cautionary admonition given by elementary writers upon evidence, and usually embodied in the charges of all enlightened courts to juries.
The court, after a full survey of all the evidence, a careful analysis of it, and a calm consideration of its weight and bearing, is brought to the conclusion that at the institution of this suit the two notes which had been given by Cannon to Lawler, were not a subsisting debt against the estate of Cannon ; and that the administrators had good and sufficient reasons for rejecting them, as an improper claim against their intestate.
But, as the mutual responsibilities of these parties have been brought up in review before the court in this case, and, as the District Court had original as well as appellate jurisdiction in all matters pertaining to the administration of decedents’ estates, it is right, and it is the duty of this court, in order to put an end to litigation between them, to settle and adjust, by the decision here, all matters in any way involved in this controversy.
Before proceeding to make such settlement and adjustment, however, the question of the mistake, as to the locus m quo of the mortgaged premises, must be disposed of. The argument upon the proof of mistake is plausible, but it is by no means
It appears, then, that at the date of the execution of the title bond, giving the appellant credit for the $1800, he was still indebted to Cannon for the residue of the land, at the price stipulated, in the sum of $589 i¥o, but, at the time, he was legally bound, as surety for Cannon, in various sums, which he afterwards was compelled to pay—the principal and interest of which, at the time of actual payment, operated, in equity, as an extinguishment of so much of the principal and interest of his indebtedness on the land, and which was an equitable set-off against the land debt. The authentication and the allowance of these claims by the administrator do not
Reversed and reformed.
Agreeing in the general result of the decision and reasoning- in this case, I beg leave to dissent so far as relates to what is stated relative to the supposed superiority of sealed instruments, and so far from regretting that seals and scrolls were abolished by the act of 1858,1 regret that it was ever deemed necessary to introduce scrolls or seals, and mating any distinction in instruments having and not having a scroll or seal annexed to the name or names of the maker.