62 Tex. Civ. App. 126 | Tex. App. | 1910
Lead Opinion
By a deed dated January 4, 1904, Eva Potter, Cora McKemie and Stella Rieves, joined by their respective husbands, conveyed a tract of 167.62 acres of land in Denton County to John Williams. The consideration for the conveyance was $1000 paid by Williams and the execution and delivery by him to the grantors of his nine promissory notes—one for $1000, payable to C. B. Potter; four for $272.75 each, payable to Will McKemie; and four for $316.50 each, payable to C. H. Rieves. By a stipulation in the deed a vendor’s lien was expressly reserved by the grantors to secure the payment of each of ti^e notes.
By a deed containing covenants of general warrant)', dated January 3, 1904, and filed for record October 31, 1904, Williams, in consideration of $600 paid to him by S. B. Burden and the execution and delivery to him by Burden of his promissory note for $1425, conveyed to said Burden 67-1 of the 167.62 acres. By another deed, containing like covenants, dated August 27, 1904, and filed for record October 28, 1904, Williams, in consideration of $1100 paid to him by appellee Mrs. M. S. Hicks, then Mrs. M. S. McLaughlin, and the assumption by her of the payment to the holders thereof of the four promissory notes for $316.50 each made by Williams in favor of Rieves, and the payment of two' of the four notes for $272.75 each made by Williams in favor of McKemie, '$120.50 on another of said $272.75 notes, and $154.55 interest accrued ■on said notes, conveyed to said Mrs. Hicks the remaining 100 acres of said tract. The notes Mrs. Hicks assumed to pay afterwards were paid .by her. At the time Mrs. Hicks purchased the 100 acres she knew '.Williams had conveyed the 67J- acres to Burden.
Williams having failed on the maturity thereof to pay the note for $1000 made by him in favor of Potter, the latter, by his petition filed ¡February 3, 1908, commenced his suit thereon, seeking as against Williams a judgment for the amount due thereon, and as against Williams, Mrs. Hicks and her husband, and appellant Hawkins, then the owner of the 67-¿- acres, a foreclosure on the 167.62 acres tract of the vendor’s lien retained to secure the payment thereof. Williams having also made ■default in the payment of one of the $272.75 notes and of a part of another of same, and Mrs. C. Metz, the holder thereof, having pending in the same court against the same parties a suit thereon seeking like relief, the two suits were consolidated and then tried as one by the court without a jury.
On the trial the right of the holder of the notes to recover as against Williams the sums claimed to be due thereon, and to a foreclosure of the vendor’s lien retained on the 167.62 acres to secure same was not questioned. The principal controversy was between Mrs. Hicks as the owner of the 1.00 acres, and Hawkins as the owner of the '67^ acres—each of them contending that the part of the 167.62 acres owned by the other should be first sold to satisfy the judgment to be rendered in favor of the holders of the notes. The court determined the contention in favor of Mrs. Hicks, and in his judgment directed that the 67-1- acres be first sold
Were the facts so far stated the only ones appearing in the record it would be clear that the 100 acres owned by Mrs. Hicks should be held to be liable to be first sold in satisfaction of the debt, and that the trial court erred in directing the 67-1 acres owned by Hawkins to be first sold. For it is well settled that, under circumstances like these stated, “when lands subject to an incumbrance are sold to different purchasers, in different parcels and at different times, as between the several grantees the lands are chargeable in equity in the inverse order of their alienation.” 19 A. & B. Eney. Law, 2d ed., p. 1273; 2 Jones on Mort., sec. 1620 et seq.; Miller v. Rogers, 49 Texas, 417; Rippetoe v. Dwyer, 49 Texas, 505; Van Sickle v. Watson, 103 Texas, 37, 123 S. W., 114. But it was shown further that Burden, to whom the 67-1 acres were conveyed, by a deed dated June 2-1, 1904, conveyed same to Francis, who by a deed dated October 27, 1904, conveyed same to said Williams," who thereby again became the owner of said 671- acres; and that afterwards Williams, by a deed dated February 28, 1907, conveyed said 67¿ acres to Shirley, who conveyed same to Keith, -who conveyed same to appellant Hawkins. While in effect conceding that her 100 acres primarily was liable for the payment of the notes sued upon, so long as the 67-1- acres were owned by Burden and later by Francis, Mrs. Hicks insists that when said"67-1 acres became again the property of Williams,, same became and while thereafterwards owned by him continued to be primarily liable-for the payment of such indebtedness; that when he again sold it the purchaser (Shirley) took it with notice of Williams’ prior deed of record conveying to her the 100 acres; and that, under the rule stated, the 67-¿ acres in the hands of Haivkins, claiming under Shirley, who purchased from Williams after the latter had sold the 100 acres to Mrs. Hicks, was liable to be first sold in satisfaction of the notes. Had a foreclosure of the vendor’s lien asserted by Potter and Mrs. Metz on the 167.62 acres tract been had during the time Williams owned the 67-J- acres under his deed from Francis, clearly, we think, the judgment effecting such foreclosure should have directed the 67-| acres so owned to be first sold and the proceeds of the sale applied to the satisfaction "of the indebtedness, and the 100 acres to be sold only in the event such proceeds were not sufficient to satisfy such indebtedness. For, while Mrs. Hicks took the 100 acres conveyed to her subject to the lien retained on the entire tract to secure the payment of the notes, she did not assume to pay them. The debt evidenced by the notes was Williams’ debt, and not Mrs. Hicks’. Certainly while Williams owned a part of the 167.62 acres tract incumbered with a lien to secure the payment of his debt, he should not have been heard to say that another part of the tract, sold by him with a warranty by him to the purchaser against incumbrances, should be sold in satisfaction of his debt before the part owned by him should b^ sold for such a
Appellant further insists, should it be held, as it is, that the facts so far stated do not show the judgment in the particulars referred to to be erroneous, that it is erroneous because it further appears from the record that Francis, as a part of the consideration for the conveyance to him by Burden of the 67-J acres, undertook to pay a note for $1425 Burden had made to Williams as a part of the purchase price of the 67-1-acres when he bought same of Williams, and that he (Francis) had made to Burden as a part of the consideration for such conveyance to himself his note for $250.55; that Williams when he reacquired the ownership of the 67-¡- acres assumed the payment of both said $1425 and $250.55 notes; and that Shirley, who afterwards purchased the 67-1 acres from Williams assumed to pay and did pay to the holder thereof, the Sanger National Bank, the amount due on both said notes. The contention made by appellant on this state of facts, seems to be that 'the holder of said $1425 and $250.55 notes had a right superior to that of the holders of the notes sued upon to have same satisfied out of the proceeds of any sale made of the 67-¡- acres; and that Shirley, having paid said $1425 and $250.55 notes, and appellant Hawkins, claiming under him, became subrogated to such right of the holder thereof. Conceding that on the facts appearing in the record, the bank as the holder of said $1425 and $250.55 notes had such a superior right, we do not think either Shirley or his grantees can claim anything on account of it. For, it seems, that as a part of the consideration for the conveyance to him of the 67-3,- acres, Shirley assumed the payment of said $1425 and $250.55 notes. So when he paid the notes, he paid his own debt. Therefore, we are unable to understand how the doctrine of subrogation can be invoked by him or by any one in his right.
We are of the opinion that the judgment in so far as it determined the controversy between the plaintiffs in the court below and the other parties, and in so far as it determined the controversy between Mrs. Hicks and appellant as to the equities asserted by them against each other, is not erroneous.
The deeds from Shirley to Keith and from Keith to appellant contained covenants of general warranty. As recited in the respective deeds the consideration paid by Keith to Shirley was $4050, and the consideration paid by appellant to Keith was $3350. To indemnify appellant against the incumbrance on the 67-| acres represented by the notes sued
Rehearing
ON MOTION FOR REHEARING.
Questioning the correctness of the conclusion reached by us that, had a foreclosure of the vendor’s lien asserted by Potter and Mrs. Metz on the 167.63 acres tract .been had during the time Williams owned the 67-1- acres under his deed from Francis, the judgment effecting such foreclosure should have directed the 67-1 acres to be first sold to satisfy it, appellant argues that the warranty in the deed from Williams to Burden “was,” quoting the language of the motion, “an absolute lifting of the lien from the 67-1 acres and placing it on the 100 acres”; that Mrs. Hicks purchased the 100 acres knowing same had been so charged, while in Williams’ hands, with the entire debt; that as between Burden, the first purchaser of a part, and Mrs. Hicks, the purchaser subsequently of the remainder of the tract, the equities arising from the order of their respective purchases had become irrevocably fixed; and that, therefore, the fact that Williams, at a time when his indebtedness evidenced by the vendor lien notes remained unpaid, again became the owner of the 67-1 acres, should not be held in any way to have affected those equities. The argument, it seems to us, ignores the reason existing for the rule that requires, where real estate bound by a lien has been alienated in separate parcels to various persons at different times, the parcels to be sold, when the lien is to be satisfied, in the inverse order of their alienation; and also ignores the fact that the rule, being a doctrine of equity, is not an absolute one, hut will yield to the circumstances of a particular case and will not he applied where its operation would produce an inequitable result. To have required the 100 acres owned hv Mrs. Hicks to be first sold for the purpose of satisfying Williams’ debt, at a time when he owned the 671 acres, would have been to ignore
It is further insisted in the motion that we were in error in holding that Shirley, and appellant a-s his grantee, did not, by the payment of the note for $1425 given by Burden to Williams and the payment of the note for $250.55 given by Francis to Burden, become subrogated to the rights of the Sanger National Bank, the holder thereof, and attention is called to the fact that the statement in the opinion that Shirley had assumed the payment of those notes is without support in the record. The erroneous statement in the opinion was due to the fact that the wwiter misread the record. Francis assumed the. payment of the $1425 note when he purchased from Burden, and Williams assumed the payment thereof and of the $250.55 note when he purchased from Francis. But Shirley, when he purchased of Williams, did not asssume the payment of said notes. However, on another ground than the one mentioned in the opinion, and without reference to the contention made by appellant as to his right to be subrogated to equities of the bank as the holder of the $1425 and $250.55 notes, we must hold that the conclusion reached as to the disposition to be made of the appeal rvas a correct one. By his pleadings appellant asserted that he was entitled, as the owner of the 67-1- acres, to have the decree to be entered foreclosing the Potter and Metz lien to provide for the sale first of the 100 acres belonging to Mrs. Hicks, hut nowhere in his pleadings did he set up any right to relief on account of the fact that he had paid to the bank as the holder thereof the amounts due it on the $1425 and $250.55 notes. He could not be subrogated to the rights of the bank as the holder of the notes, without pleading and proving facts entitling him to such subrogation. Crebbin v. Moseley, 74 S. W., 816; Silberborg v. Trilling, 82 Texas, 525.
The motion is overruled.
Reformed and affirmed.
Writ of error refused.