11 Tex. 526 | Tex. | 1854
This suit was brought to recover the amount of a note given by the defendant to the plaintiff, on the second day of December, A. D., 1840, and to enforce a lien for the payment of the note aforesaid, on certain negroes named in the petition, for the purchase of which the note was given. There was a general demurrer filed, to the petition, which was sustained by the Court; which is assigned as the first error, by the counsel for the appellant.
To enable us to determine whether the demurrer was correctly sustained, we will recite briefly the substance of the petition. It alleges that Warren D. C. Hall is indebted to her
The first objection, in sustaining the demurrer to the petition, is the want of proper parties to it. It is an acknowledg
. In this ease, the plaintiff had disturbed the rights of the purchasers and subsequent mortgagees, at the very outset of her suit, in a way that she could not have done had it been a mortgage of real estate; and this without maMng them parties to the suit. She had prayed in her petition for a sequestration of the negroes, so purchased by them, and had obtained, on her petition, the writ of sequestration. Again, it has been the uniform and most cherished rule of this Court, to prevent a multiplicity of actions, and to settle all the rights connected with the same subject matter of litigation, in the same suit. It would, therefore, be a case of very peculiar circumstances, where we would prevent a known subsequent incumbrancer to be dispensed with as a party ; more particularly if the petition was for the foreclosure of a mortgage or sale of personal property.
In this case, the plaintiff knew of the subsequent purchases and mortgages, because she alleged it in her petition. She should then have made them parties, and by so doing saved the circuity of action. It is the practice, sustained by respectable authority, to require the mortgagee to propound questions to the mortgagor, in the bill for a foreclosure where
The demurrer was, then, in my judgment, well taken to s6 much of the petition as claimed a foreclosure of the mortgage. It did not go to the claim of judgment on the note; and if the petition had not amended after the demurrer was sustained, she could have had the judgment on the note, if no other defence had been offered.
But, to my mind, there is another more formidable objection to the petition, for the foreclosure and sale of the slaves, than the one just discussed; that is, a total failure of alleging in the petition, any mortgage or lien or sale of the property, known to the law in relation to the sales of the.property of a deceased person, or regulating mortgages, and the manner of foreclosing them, or of having them recorded. The acts and doings of the Judge of the Probate Court were not merely void, but were absolute nullities, and could create no lien ; nor could the fact of their being spread upon the record books of the Recorder of Brazoria, confer upon them any validity, as a lien, nor as notice to subsequent purchasers or mortgagees. The so called process verbal and act of sale of the Probate Judge, being unknown to the law in force at the time and for a long time before, their record, like the originals, was mere waste paper and ink. So much of the petition, then, as asked a foreclosure of the mortgage and a sale of the slaves under the supposed specific lien, was so substantially bad and fatally defective, that it was bad on demurrer or in arrest of judgment, or upon error assigned, in this Court, as it affords no basis for a decree of foreclosure or of sale.
The 22d Section of the Act of 5th February, 1840, (Art. 1016, Hart. Dig.,) directs how sales shall be made, of the property of an estate, that it shall be by the executor or administrator. Section 29 of the same Act, (Hart. Dig. Art. 1023,) directs, “ That every executor or administrator is bound, within three
These are the provisions of the laws regulating the duties of administrators, so far as they are material to the subject we have been investigating. Ho lien or mortgage is provided for by law; but the Section last cited seems to confine the security to personal, as it gives the remedy against the purchaser and his securities, by the sale of their property in general, not the property so purchased at the administrator’s sale, without appraisement.
After the demurrer was sustained, the plaintiff amended her petition, only so far as to bring in as defendants the subsequent incumbrancers, the purchasers and mortgagees, but left the petition still obnoxious to the objection, that it contained no
The defendants, brought in under the amendment, after the demurrer was sustained, plead the statute of limitations, which was ruled out by the Court, on the motion of the plaintiff. On the sufficiency of this plea, we have been furnished by the counsel for the appellees, an able, and we may say a conclusive argument. Why the jury were not permitted to pass upon that plea, we acknowledge our inability to perceive. But, in the state of the record, we are not called upon to discuss the ruling of the Court, in relation to that defence; for,
But, to return to the assignments of error. The appellant complains that she was not permitted to give this process verbal of the Probate Judge, already commented on, in evidence to the jury, in support of a lien or mortgage on the negroes ; not permitted to prove notice of it; not permitted to amend and allege that the Probate Judge was her agent. In none of these rulings can we perceive that the Court erred. The notice of the writing, called a process verbal, as we have shown, could not affect any rights of the parties; and whether it was to be regarded as the voluntary, officious act of the Probate Judge, or as the act of the agent of the administratrix, it created no lien, and was properly excluded from the jury. The construction of written evidence properly belonged to the Judge; and we believe that he properly excluded it. And it would have made no difference, had there been an averment in the petition, that the paper was made as the agent of the administratrix. The Judge would still have been called upon to give it a legal construction; and he rightly adjudged that it was not evidence of a lien or mortgage.
There was no evidence before the jury to establish the lien; and none could have been received, under the petition, to give validity to the instrument alleged to be a mortgage; and consequently the jury had nothing before them but the evidence of the indebtedness of Hall. They found a verdict against him, on that evidence, and found in favor of the other defendants. We find no error in the judgment in favor of the defendants who were brought in as purchasers under the defendant Hall.
Another aspect may be presented, that would as clearly manifest the necessity for the interposition of the District Court, when, from the organization and powers of the Probate Court, the relief could not be had. Suppose that Hall had in truth mortgaged these negroes for the purchase of which his indebtedness to the estate had accrued, to the administratrix, to secure the payment of the indebtedness, and he had after-wards sold or mortgaged them to the other defendants, as he had a right to dó, and such vendee or mortgagee would have a clear title encumbered by the first mortgage only. If a decree of foreclosure or sale should be sought by the first mortgagee, the subsequent purchaser or mortgagee could successfully resist such suit, by showing that the money had been paid by the first mortgagor, and the lien extinguished. Or, if they could show that there was a fund in the hands of the administratrix belonging to their vendor or mortgagor, it would scarcely be doubted that they would have an equitable right to have that fund appropriated to the extinguishment of the first lien, and thereby remove the incumbrance from their own purchase. This they could have done by a separate petition, or could have claimed the same on be
Judgment affirmed.
Wheeler, J. The Reporter will note, that not having been present at the argument, I gave no opinion.