*1 error plaintiff because of that action Court Civil Appeals.
The law is well that the has settled Court no Supreme jurisdiction writ of error matter suit. This Court over the of this subject has to review decisions of the Courts of Civil appellate jurisdiction in cases Appeals where latter exercise only appellate jurisdiction It has no distinguished original jurisdiction. power a writ of error a Court of Civil in the exercise grant where Appeals case, of its as in this has a writ of issued original jurisdiction, The of the Court prohibition. orig- of Civil Appeals final, inal actions of this in so far as the character appellate Morris, Court is concerned. Schintz v. Supreme jurisdiction Texas, 648; Palestine, of Houston v. City City et al. v. F. et al. decided Edgar Scurry Freiburg recently J. but not for writ of error is accord- yet reported. petition dismissed for want of ingly jurisdiction.
W. L. v. C. S. et al. January
No. 4942. Decided Series, 780.) (34 S. 2d *3 J. Hill for R. error. plaintiff and Preston were mortgagees possession. v. Lindsey W., 200;
Hart, Evans, 276 W., 450; S. Bassham v. White- Texas, 638; 427; head Graham, v. 64 12 Garrity, Texas, v. Duty Hadden, 182; Texas, Texas, Soell 85 Whittaker, v. v. 68 Railway 634.
A is to mortgagee bound the revenues from the to the mortgaged debt. Davis mortgage Hubbard, Ala., 185; 477; v. 38 Mauldin, Ala., Chambers v. 4 Butterworth, Howard, 367, 1026; Bennett v. 12 Ed., 13 L. 27 Cyc., 1838, 1839; 1250, 1835, v. 48 22 Morgan Morgan, N. Eq., J. Atl. 545. the revenues from the were sufficient mortgaged premises
When debt, the the title to satisfy mortgage premises passed from lien and title of became free the mortgagor mortgagor, absolute. lien holder of vendor’s notes demands that the maker
Where the same, notes, then sues maker on thereof obtains maker, foreclosure of ven- personal judgment against lien, sale dor’s and issues execution and order of on the judgment, notes such acts constitute an election on holder part to affirm the contract of the sale of the land and re- operates 625; W., nunciation of land. Mozoch v. 240 title S. Sugg, W., 247; Robson, 158 Von Roerder v. S. v. Stansberry Booghery,
525 754; 314; Texas, Griffith, Texas, 267, W., 20 Gardner v. 93 35 S. Texas, 267, W., 1027; Trust Co. v. 93 54 Beekley, S. Douglas W., 6; Blunt, Texas, 381; 187 Co., 95 Stratton Fire Ins. S. W., Evans, Bassham v. S. Wiseman v. Cottingham, W., 819; Garrett, Jirou, Rice v. Jirou 672. Where from the the vendor of land takes a sub-vendee conveyance of his vendee, and afterwards elects to affirm sale and pursues his vendee on the notes foreclosure of the personal judgment, vendor’s sale, issuance of execution and order of title acquired by deed from the is sub-vendee in the merged judg- and where the ment satisfied the title vests in the Masterson, vendee. Flarris v.
Morris, Morris, Sewell & Morris, Jr., Cole, N. B. Cole & O’Connor, for defendants in error.
Where Richard sold to in consideration plaintiff, $40,000.00, evidenced each, vendor lien $1,000.00 notes for and where in turn plaintiff sold to Parker and LaRoe a cash consideration assumption
the statute of frauds unenforceable, and in that it contemplates of a securing reconveyance to Richard Lloyd by Scott Woodward a and subsequent conveyance by Richard Lloyd plaintiff of the plaintiff’s notes. No trust payment was created such Plaintiff was not in agreement. and was not entitled possession to In a possession. sale vendor of the vend- property reserving lien, or’s foreclosure; vendee is entitled to until possession and plain- tiff LaRoe, with parted his title to Parker and turn having who in had with it to Woodward, Scott parted had neither plaintiff posses- sion nor the in of of right possession. The was equity redemption Scott There was no consideration for the agreement Woodward. Plaintiff and alleged by plaintiff. claimed no defenses to the notes he would with no in into part Richard right go permitting possession and he would assume no burden in Richard permitting to take care of and debt. Wade property plaintiff’s Cohen, 323; 1168; W., W., Gordon, v. 173 43 S. et al. v. S. Thorp
526 W., 291, 293; Minton, 250 180 Newsom v. Workman v. S. Ray, Rose, W., 417; Bren W., 271 Friedsam v. S. v. Downing nan, Mass., 525, E., 122 N. 232 729.
It himself sold property will observed plaintiff LaRoe, Richard assumed debt to Parker who plaintiff’s this, course, on the The effect of of vendor notes. was to make Parker and LaRoe re debtors to Richard principal Lloyd and duce status of of for plaintiff surety payment Hoeldtke, Texas, 594, R. W., debt. v. 104 142 40 (Hill L. A., (N. S.) 672.) Woodward,
Parker and LaRoe themselves sold to Scott of Parker vendees, from his passed plaintiff ; LaRoe, Bender, W., Scott Woodward: Mason v. 97 S. Hart, Lindsey 199. (Com. App.) entitled, course, vendor, either Richard was of Lloyd, vendor, Heirs of Roberts v. Love or foreclose his lien. rescind Texas, 227; Texas, 255; Hanner, Hamb Summerhill joy, Texas, Folts, Texas, 137; Boon, 73 len v. Cattle Co. v. re- his with of equity Hill was not in and had parted and, Masterson, 482), demption (Harris above, for surety occupied position as shown isHill attitude, alleged by In this the oral agreement the notes. redemption equity of the statute of frauds. The violative Hill would require Scott Woodward Richard from Scott reconveyance the securing lands and the “released plaintiff had voluntarily Defendants Lloyd. and had declared of foreclosure from the judgment involved any not further prosecute and that would satisfied judgment or same, or claim against plaintiff title anything or under thereof.” Any possibility virtue controversy the premises him is foreclosure against from the to plaintiff injury on par the case in that regard brings eliminated and hereby Burnett case, bought which case. Ross the Foster v. as to which the face of $500.00, judgment, instead of petition “It will be observed plaintiff’s remarked: Gill
Judge back to C. S. the land that Scott Woodward alleges Unless Lloyd. will of Richard as executor *5 alive, for the protection plaintiff would the indebtedness keep result in a merger vendor, would clearly this appear of plaintiff’s 41 in plaintiff. lien and the redemption of the vendor’s therefore, 775, allegations, plaintiff’s C. Sec. 869.” J., p.
527 to the release and ordinarily extinguishment would a merger show thus on the Richard of his indebtedness to Lloyd, appearing for be additional ground sustaining face of would petition 859, W., Ellis v. 279 S. Scarborough, demurrer. See general W., 1002, which 289 affirmed Commission of S. Appeals, Masterson, holds occurs on merger case follows Harris v. for unless the equity redemption prevented vendor re-acquiring vendor. the benefit MOTION FOR REHEARING.
ON Hill, Parker and said that on default LaRoe and It may if Scott the interest their debt to Lloyd, Woodward to notice were without had the without right, equities, them, and if with after to another notice to sell equities, Texas, title: convey v. 72 party superior Kennedy Embry, 88; 387, W., Texas, 585, 10 S. v. 103 131 S. W. Lipscomb Fuqua, 225; 1061; Westbrook, Texas, Barry, 56 Morrison v. v. Thompson W., 30 376 (writ S. refused). the other sue debt
On hand where vendor elects to for the lien, he his loses to sue establishment of thereby his lien — the and his to foreclose remedy superior the land only Robson, 20 his vendee: Von Roeder out him to v. title passing Texas, 437, Texas, 754; Love 25 Texas 28 joy, Sup., Roberts v. Texas, W., 797; Harris, 181, Pel 641; 70 7 S. Gunst v. v. Bartley Texas, W., Moreman, Texas, 233; 84 ham, 586, 12 Pierce v. 74 S. Texas, W., 355, W., 821; Griffiths, 55 S. 596, v. 93 20 S. Gardner 314; W., 770; v. 254 Wiseman App.) Mozoch v. S. (Com. Sugg, W., 817; (Civ. 141 S. Moon v. Sherwood (Civ. Cottingham App.), W., 180 296. S. App.), Parker, assumed to LaRoe and who sold
When Judge Hill, Parker the principal obligors LaRoe and became debt to Judge Cochran & their v. surety: Spann Hill became only Judge Texas, 240; Hoeldtke, Texas, 104 142 S. Hill v. 63 Ewing, 562; Richardson, 185 871; Brannin S. W. v. W., W., 945; v. Carraway 212 S. Traylor, (Com. App.) Allen v. W., McDowell, 5 672; Clemmens Fowler, App.) 267 S. (Com. 955; W., W., Snyder Com. App.) affirmed S. ( S. (2d) 974; 220 S. W., Strickland v. Higginbotham, S. Slaughter, Watkins, 568; W., W., 433; Clayton Pickett v. Jackson, W., Co., Trust Farmers’ & Smith v. Loan Robbins, Fox v. *6 528 LaRoe, Parker had sale of the land Hill to Hill
After the than interest the land other event require no further notes, first Hill on the that the land be sold to hold personally sought such recourse as a fund and exhausted before any personal primary 171, Masterson, Texas, 41 him: Harris 91 could be had v. against 1002, 482; W., W., Ellis v. 289 S. (Com. App.) S. Scarborough, W., 859; Bank Farmers Merchants v. Cam- 279 S. & State affirming W., eron, 1167; 203 affirmed 231 S. (Com. App.) S. W. (El Paso) 642; 738; Harbison, W., Doolen v. v. 185 Newby (Amarillo) S. W., W., 364; 230 192 v. S. Jones, S. Hulsey, Campbell (Amarillo) 710; R., Note 46 A. L. 322. (El Paso) Hill no cause of action would have against As such surety Judge his not be entitled to sue them as and would LaRoe and Parker 50 C. notes to Richard Lloyd: until he had off the paid principals J. 250; Cocke, Texas, 2 408, Ennis 592. v. Sec. p. Hill’s behalf would not interfere on Judge And court of equity Parker, LaRoe and pay as his surety compel principals, land, liable,, that the primarily it had been ascertained debt before 35, 244, 396, 50 Note it: C. Sec. to discharge insufficient J. Y., Watkins, N. 597. 86 245; v. Slawson p. main- that one’s cannot surety to the fact is in analogy All this until contribution co-surety action for a cause of tain more than his share debt: has the creditor paid such surety Texas, 491; 77 14 S. v. Murray, 50 C. Sec. Jackson J. W., 323, other Godwin, 264 affirmed on 235; S. W., v. Langley W., 659. (Com. App.) 276 S. grounds, fact that Hill in is not relationship changed This surety secure a vendor’s lien to Parker reserved to LaRoe and his deed executed to the notes which liability him 842; W., Masterson, Texas, 41 S. Strick 91 Harris v. Lloyd: Co., W., 220 433. Bros. & land v. Higginbotham are con- vendee protected against subsequent The rights vendee: Huff- his immediate vendor and tracts between the original 71; St., 22 Am. Texas, W., 1029, 556, 14 S. man v. Mulkey, Persons, W., 430; Bank, 122 Levy Home Mem. Bonner v. W., Miller, Texas, 309, 89. 39 S. W., McDonald v. 131 S. foreclose, his suit to title went out of Lloyd by When legal Woodward, Parker into Scott LaRoe and went it through Sanborn oral agreement. to divestiture subject and was Crain, 610; Dial Texas, 43, Murphy, (Com. McDonald v. App.) Whaley, as this court that under facts It is a held non-sequitur in- abandonment and and Parker’s based on LaRoe Woodward’s Hill, rents, this state of facts vendee that “under ability to had the without accounting Lloyd, *7 for Mozoch v. supra. the rent.” Sugg, on redemp- had right reacquiring equity clearly he not as Woodward, either a or
tion from Scott to elect merger claims If he a all adverse against saw elected merger, proper. course, liens held any intervening mortgaged premises (except, out- If elected to treat the third are he extinguished. parties) as in Hill’s lien notes as evidenced vendor standing obligation Parker existence, a hold Hill and LaRoe and then had so, Hill and Parker but when he did and LaRoe personally, be sold the land to require correlative right (and only) recourse could be had them per- as fund before primary be entitled to any Neither Hill nor LaRoe and Parker would sonally. excess which the as that would premises might bring, go This as the holder of Scott Woodward’s redemption. will Court find Harris v. Masterson followed and approved by authorities: following 1002, W., affirming, (Com.
Ellis v. S. Scarborough, App.) 642; W., 859; Harbison, 185 S. W., (Amarillo) v. Newby 279 S. 364; W., Farmers & Mer 192 S. Hulsey, (Amarillo) v. Dooley 738; W., Cameron, 231 App.) Bank v. S. (Com. chants State 710, W., 230 S. (El Paso) v. Jones, Campbell to that which additional rights obtain any If Hill was Parker, he must obtain for LaRoe and surety as a he possessed matter of manner, subject and since the in some legal same obviously estate, writing have it would real contract Ross, 77 Foster v. S. consideration. for valid to be have would 1168; Cohen, W., ; v.Wade W., refused) of error 990 (writ W., 323; 180 S. W., Ray, v. Gordon, Workman 43 S. v. Thorp Rose, W., 768; Friedsam v. Minton, 250 S. 293; v. 291, Newsom Marine Ins. Co. Fire & 417; W., (Northwestern Oviett 271 S. 434; Holloway, Davis v. Warner, App.) 288 S. (Com. v. al.) et Co., 152 Ins. Y. Life 105; N. Seward Sup.) (Mo. 525, 122 Brennan, Mass., 346; E., Downing (Va. Sup.) L. So., 139 A. Ala., 146, 51 Craft, 166 E., N. Shriner et p. seq. Sec. R., 13 C. J., Court. SHARP delivered the opinion
Mr. Commissioner L. Hill this W. instituted suit in district court of Anderson Preston, as execu County C. S. C. S. Preston individually, Preston, tor deceased, of the estate of Richard Mrs. Dora Lloyd, L. Preston, husband, wife of C. L. and Mrs. Cora Theo. Neff Neff, substance that on the 18th alleging December, day L. Hill W. purchased Richard 1655 acres of in payment therefor executed notes, each forty for the sum of $1,000, 19, 1917, dated December due or before ten years after date and interest at bearing the rate of payable annually. 6% A vendor’s lien was retained against the land to secure the pay ment of the notes additional security - $40,000 gave Lloyd deed of trust on 1944.7 acres of land in addition to that covered vendor’s notes. This tract of land is tract; referred to as the Hill the other tract as the *8 Hill Lloyd tract. sold the land Parker, to- La Rue and who assumed payment of the notes to and Hill Lloyd, retained a vendor’s lien to secure the of their payment La Rue obligations. and Parker sold to Woodward. Woodward defaulted in the of the payment 1921, interest for the year amounting The principal $2400. was not due until 1927. Lloyd demanded of Hill thereupon pay interest. When Woodward defaulted the payment of the interest he offered surrender the possession land and to release it to Hill or was Lloyd. He did or to abandon ready It was and between Hill and possession. thereupon arranged by Preston, Lloyd who was the son-in-law Lloyd and sub estate, of his should take executor of the two sequent of land and rent them and the rents to the tracts rented Preston and collected accordingly the debt. 1921, $18,000 for the $15,000 from the rents for the year year 1924; that the rental of the land $16,000 $15,000 value market $150,000. annum. The value of land is per In Preston as executor filed suit Lloyd’s January, Hill notes and secured Hill for personal on the judgment against notes, fees, amount of interest and attorney’s principal, $55,000, with foreclosure amounting approximately deed of trust on the Hill tract and foreclosure vendor’s lien on the tract. that Hill this judg-
In Preston demanded January, pay money ment. Hill demanded that Preston credit the judgment balance any of the land and offered pay collected from the rent this, Preston refused do on the might owing judgment. had conveyed first Hill that and then for time told his, land, it Preston’s Preston and that was Hill tract was not that Hill rents. The was not entitled to the in this in issue tract is not to Preston and the title to that case. an Hill with to issue an execution then caused
Preston made to has ever been land. No accounting order of sale of an injunction Plill tract. Hill secured from the Hill the rents him and the order judgment against the execution restraining this suit. Defendants thereafter filed the land and of sale against suit declaring judgment in the injunction then filed answer satisfied. suit offered to pay in the injunction
That Hill in his answer lien notes executed by the vendor’s amount was due on whatever that if said credits so this suit Hill him to That in Lloyd. alleges of said land him from the rents and revenues claimed derived Preston, successor, are not sufficient and his of Lloyd Hill, he, offers to indebtedness, the said said satisfy said credits on said after whatever amount remains due have been made.
That the time of the execution of the at issuance order $49,000 of sale collected from the January, of the two tracts of land. At the date of rent the judgment amount collected from the rent for 1925 had not been ascertained. Plaintiff on information it and belief that approxi- $20,000. offered to balance the court pay any mately might *9 find to be on the for a for judgment prayed owing judgment land. tracts of $15,000 The rental value of two land is per $150,000. is It is annum. The value of the land not shown how much was collected from the Hill tract. Plaintiff stated money in as to this his that he did not know that Pres- petition prayed an to make This was not ton be done. required accounting. a
The trial court sustained demurrer to general plaintiff’s original an Thereupon was made petitions. appeal and supplemental at to the Court of Civil Texarkana Appeals and that court plaintiff court. of the trial affirmed the 925. Hill error, which was for writ granted by Supreme applied Court. will trial hereto were in the parties designated
court.
Plaintiff submits the following propositions: and Preston were mortgagees possession. 2. A the revenues is bound to mortgagee from the to the of the debt. mortgage mortgaged premises payment were suffi-
3. When revenues from the mortgaged premises debt, the title to the passed cient to satisfy mortgage free from lien and the title of the mortgagor mortgagor, became absolute. “ lien notes that the holder of vendor’s demands 4. Where notes, maker on the same, and then sues the thereof pay maker the maker with foreclosure of judgment against obtains personal order of sale on lien, issues execution and the vendor’s holder on the part acts constitute election such judgment, contract the sale of operates to affirm the notes title to the land. renunciation as a sub- from the conveyance of land takes the vendor
5. Where affirm the sale and vendee, elects to and afterwards vendee foreclosure judgment, on the notes personal his vendee pursues and order of of execution and the issuance lien vendor’s the sub-vendee is merged the deed sale, title acquired satisfied the title vests is and where the judgment in the judgment in the vendee. in sustaining court of the trial that the action contend
Defendants correct and of action was cause to plaintiff’s, demurrer general con- following be sustained upon should of the court the action tentions : that the oral agreement, alleged defendants
“It contended by : reasons unenforcible, the following for is void and by plaintiff stat- and, therefore, under invalid It was not in writing, “1. frauds; ute of neither in possession Mr. Hill was a trust. not create It did
“2. time of the alleged agreement at the to possession entitled nor for agreement.” no consideration There “3. defendants, plaintiff urged the contentions In reply : propositions the following submits executor, be- Preston his the vendor Lloyd being That (a) executed *10 said to enforce and seeking thereon judgment obtaining and by Hill to Hill judgment personally thereby electing pursue land, not debt, on the could claim title to the even though Wood- Preston; had the ward land to and Hill to offered having balance have found the whatever been court to be pay might the due on had a to the money, recover purchase premises there in even had been no consideration for controversy, though the that should Preston hold the of agreement possession the rent it and and rents to the of the debt. apply payment even that the And court hold (b) though might convey- Preston, to after to hold ance he promised possession apply debt, rents thereof to the Hill’s not a of did create payment benefit, when trust Hill’s the defendants elected to yet, pursue Hill on the debt lost the claim the right to land and Hill hav- a offered to the debt had to recover the land. ing pay That no consideration necessary (c) support agree- rent ment the debt. money That there was a valid consideration for said (d) agreement. in made are substance that plaintiff Hill allegations bought the land from his notes therefor a Lloyd secured gave therefor, on the as additional premises security vendor’s land; Woodward, of trust on 1967 acres that deed executed sub-vendee, in the defaulted the interest on payment Hill’s surrender premises did give up and offered posses- *11 and offered to balance that remain ment pay any might unpaid, refused to do this and had execution Hill for Preston issue against with an the the amount the order of sale on judgment premises. the That he was to sell land under such order of sale proceeding an when restrained from the District Court of by injunction Ander- out at Plill’s instance. That Preston then son sued County by suit answer filed in the declared the satisfied injunction judgment Hill refused to the to thereupon give up this suit. brought
The is well settled in this state that in a rule sustaining general intendment will be in of the suffi- demurrer reasonable favor every In of the as tested upon petition ciency pleading. passing demurrer, court should consider as everything general construction is embraced with- which reasonable properly If in the does petition. petition contained in the allegations issue, with reference to sufficiently specific allegations any contain be made means of a thereto may special exception. the objection demanded that Hill that Lloyd having It is contended taken of the land under agreement debt and having debt, under that to the payment agreement to the rents apply At the with contract. date comply was bound Pres- had not the land to made the agreement title or interest had in the only right, ton and Hill to take a He was permitted by lien holder. the rents to the under pay- of the property so, to do he was bound having agreed ment of debt his contract and said contract him virtue made comply a possession. the terms thereof mortgagee in this state if the rule is well established vendor brings affirm a lien or has elected to his contract suit to foreclose the lien, such a suit stands in the debt and vendor after rely upon Griffiths, Texas, 355, of a Gardener v. position mortgagee. W., Mazoch v. Sugg, (Com. App.) Bassham v. Evans (Civ. App.) Griffiths, Gaines, in the case of Gardener v. supra, says:
Judge when, case, also this a has opinion are deed “We title, of itself would convey made which and where legal been taken at the a has been same time to secure the mortgage and when the money, has lost the grantor purchase finally contract, to claim rescission of title vests legal the grantee.” a choice of
Defendants had remedies. abandon the could They the land or affirm the contract and recover contract and have judg for their debt and foreclosure of the ment lien. elected They contract and have affirm the for debt and foreclosure elected to- sue Having lien. debt the establish lien and reduced the having ment same judgment, their to sue for and recover the land. Von lost Roeder *12 253; Robson, Texas, 754; Texas, 20 Roberts’ Heirs v. Love 60 joy, Texas, Pelham, Harris, 181, W., 797; 70 7 Bartley v. Gunst v. 233; Moreman, Texas, Texas, 74 12 S. Pierce 84 v. 314; W., 821; Griffiths, Texas, 355, 20 v. 93 55 Gardener 770; 254 Mozoch S. W. Wiseman Cot App.) v. v. Sugg, (Com. W., 817; Sherwood, 141 S. Moon v. (Civ. App.) tingham (Civ. W., 296. App.)
This record shows that when the land to LaRue conveyed Parker, he a vendor’s and retained the when premises; Woodward, LaRue Parker land not the to did conveyed retain lien on the and Woodward did not to as- premises, agree sume" debt made Hill. He the merely bought the to subject debt; and Parker failed pay LaRue to the debt assumed it; that unable to refused to the pay and were pay them re- abandoned the land offered to debt and Hill, into all the consideration taking the convey the Hill stood in the same position facts alleged plaintiff, first lands as he did when them as to the debt and the reverted to Hill. redemption him and of that in suit Hill mind the offered injunction It must be kept him on the notes and in this he due suit the amount pay court finds he- amount the justly offers to whatever pay again to affirm the contract Preston, al., elected et having owes. is the land. Hill position are not recover the lien foreclose he money if there pays purchase to the title entitled Hanner, 484; Texas, Summerhill v. 69 Johnson, McPherson v. for. Wells, Texas, 224; 49. Texas, v. 59 Coddington 72 court say: Johnson, supra, In McPherson v. If, after such as jus- the rule: default
“But this to be we take he sale, for the proceeds price, he rescinding the vendor tifies rescission; himself vendee avail provided, loses his right still remains But contract execu- debt. his privilege limitation, action defeat the not, can by pleading the latter tory, with which land under a contract still claim' debt, and for the has refused to comply.” 536 Stafford,
In case of Stafford Texas, 106, v. 96 Brown, Judge opinion court, rendering says : “It for us to necessary determine'whether facts con- trust, stitute or a if it mortgage because be a title mortgage, Stafford, was in B. F. and upon that he could maintain this action. If it were held the transaction constituted a trust in R. E. Stafford, then B. F. Stafford was the beneficiary that trust and held title to the land equitable which the tender of the upon absolute, sum due became and he could institute this action to re- cover land without suit to previous declare the existence of the 7 Texas, 45; trust. v. Blythe, Dec., Esterling Am. Miller Alexander, Texas, 36; Texas, v. Secrest Jones, v. Martin Parker, Texas, 253; Bell, Texas, v. Gibbons Burdett Haley,
“In Secrest Jones, vendor had a bond for title to given the land in and the question purchase been money paid. vendor refused to the land and the vendee convey brought action. title, it was held trespass try upon *13 the title became absolute in purchase money the vendee. There can no that be title to question equitable this land was B. F. under the of Stafford his allegation and could maintain petition, such action for the of the land as main- recovery have might been if he had and complete legal tained title. The fact equitable that he set out the facts which constituted his cause of action does suit; it is character of as much change an action for as if of real estate it had been in recovery the form of trespass title. try of facts when Hill and contract,
Under this state made the Lloyd as above held the Lloyd title trustee Hill. alleged, of as the successor and the executor Lloyd of estate having notes, suit on the to affirm the contract elected and to rely brought and Hill then the debt lien. was entitled to the rents until upon the order of sale issued on the rendered favor of Pres- Hill is and land is ton executed sold. Preston would no unless he became the possession purchaser. have of Hart, al., in the case is of v. 276 Lindsey rule sustained et This 199, where it is said: W., (Com. App.) S. no of is executed there is of posses- order sale
“Until the then if he becomes the only purchaser. plaintiff, sion Texas, 81, W., 99; 18 Motl, 82 S. Willis v. Sommer- v. Stephens W., 781; 22 Burson Texas, ville, Blackley, Civ. v. App., 3
537 Texas, W., 668; 5, 2 Line v. 67 Gulf Co. Lasater Pipe (Tex. W., 773, 782.” Civ. 193 at page App.) land under the contract between By possession accepting Hill, take the land it and that would and rent the rents to the vendor’s lien notes executed think, Hill, facts, reason of these placed we Wollhoefer, in the of a Tom v. position mortgagee possession. Texas, 277. 61 and was entitled to the
If the equity redemption Hill held it, then after had abandoned the land Woodward possession the rents and revenue derived therefrom. to receive he was entitled numerous authorities. is well established Whitehead rule This 638; Hart, 276 S. Fisher, Texas, v. Lindsey (Com. App.) 64 v. Moore, Texas, 629, 284; Am. 200; Rep. Loving v. Willis Newland, Texas, Milliken, Edrington Texas, 369; Hunsucker, Bros. v. Sanger Gammage, Silliman 514. refused It further contended that when Woodward to pay he lost his premises, abandoned to Hill. It is had not it reverted shoym agreed lien; He had bought subject pay anything. simply and Parker and had a lien on his to LaRue Hill had reserved deed him their default. The to secure premises a lien upon intact him the this was to Hill’s preserve rights give effect of Parker defaulted and either LaRue and or their vendees if right, abandoned take property, Lloyd. his contract
carry purchase out announced: In rule is Cyc., following a contract may “The either under of sale party rights The aban- thereby. and become extinguished lost abandonment *14 is not neces- A writing bemay by parol. relinquishment donment must be such abandonment the acts constituting Nevertheless sary. the inconsistent with the continuance unequivocal, positive, contract. incon- which is not on the
2. “Conduct of the part purchaser full and effect the force contract with the continuance sistent the Abandonment pur- to an abandonment. not amount does re- however, shown, absolutely positively where chaser is contract, he aban- or where conditions of the fuses to perform later number of years claim until a makes no dons possession in value. has risen greatly when the property As shown, already the record that Lloyd discloses sold Hill certain land and Hill executed therefor; vendor’s notes that Hill con veyed the land to LaRue and Parker and retained a vendor’s lien the land to against secure him against indebtedness that he had made to Lloyd; LaRue and Parker land to Woodward su to the bject indebtedness made Hill to Lloyd; Woodward-refused to pay debt held by Lloyd and abandoned the that LaRue premises; and Parker were debt; unable to pay Preston, the successor of and the Lloyd executor of estate, his de Hill manded of the payment of the and thereafter notes filed suit on the notes and took Hill judgment against individually principal, interest and fees attorney’s stipulated said notes and land; foreclosed the vendor’s lien that an against order of sale was issued upon judgment; the time prior Preston filed the suit Hill for
with the the rents apply to the of the debt. payment Under facts, Hill, this state of as vendee of had Lloyd, of pos- session without for accounting the rent. Whitehead Lloyd Fisher, supra.
It is that contended Hill the land to LaRue and having conveyed Parker and in turn Woodward, they and when con- veyed the land back to it that resulted in Lloyd, clearly the merger vendor’s lien and the redemption Lloyd.
It is that Lloyd and Preston entered the alleged possession land as Hill’s and were agents bound to the rents to the do, of Hill’s debts to Lloyd, as he mak- and the agreed of the secret with ing agreement Woodward to the land without buy consent, Hill’s or cannot knowledge alter Preston’s status as agent trustee; that Woodward offered to deed land to Hill and Hill could and would have taken the himself deed to but for him; fact that to hold the for that Lloyd agreed Preston’s action in the deed to himself and it from procuring withholding Hill, record and from in an was done concealing knowledge the amount attempt force and to hold judgment also; that title to the land Preston’s was Hill’s possession possession. This record discloses that entered Lloyd prem- December, 1921; 7, ises under the that on December land; deed Woodward to the procured there- Preston as after executor sued Hill January, Lloyd’s therefor the notes obtained foreclosure of lien and the deed of trust lien. It is further vendor’s land, took that from the time had collected rents from they to and said land including up $49,000. sum approximately Preston, estate,
As a further evidence acting elect as his to rescind contract that remedy did land, it is shown that with Hill and recover possession made al., Preston, in a suit in the District Court of Anderson County et vendor’s lien notes de- forty held and owned that they claimed L. Hill as had been executed W. part herein which scribed in that suit that money, urged being legal the purchase notes, described, above of the vendor’s and holders owners author- the taxes levied by taxing superior their notes were District No. 2. Hav- Levee Improvement Anderson County ities of court, Court they appealed in the district their suit lost ing Texarkana, the fact were at urging of Civil Appeals *16 holders court, 1, 1924, owners and of said in that notes and on May that court in rendered an case opinion that which is found in the Preston v. case of Anderson Levee District County Improvement 2, No. of the writ error to They applied Court, up the same and on Supreme setting November grounds, Woodward, after claim they the from they had received deed thereafter, the That in Court denied the writ of Supreme error. after claim that had of long they they acquired equity Woodward, from an redemption had order sale issue they of rendered Hill in the District Court Ander against an son and undertook to enforce order County, payment through of sale issued account of their thereunder. that on alleged him, with law he did not promises reference suit against thereon, the amount but their contest due when violated they him, a them injunction enjoining obtained writ agreement him to the full face from undertaking compel judg ; took Lloyd ment that under the facts shown Preston and him, Hill, as alleged by under contract with or consent deed without his from knowledge having acquired their vendor’s undertook to foreclose Woodward and afterwards there responsible him lien notes the land-and hold personally for, are in claim that they not now they position acquired as the title from and hold redemption Woodward equity of being that he had reason Hill and foreclose thereby any rights land from maker and the purchaser *17 ample, in acquires by purchase or a other manner any fee— lesser not estate equitable coextensive and commensurate with his estate, or a estate, lesser legal exists; a distinction legal the merger, law, at although taking place does not take in necessarily place indeed, it be equity; may said that the is leaning then equity that, against any facie, it merger, prima does not result. settled rule of is that the intention of the one acquiring two interests 2 then controls.” sec. 788. Pomeroy,
“Where a a takes mortgagee of the land conveyance from the or from a mortgagor, of the grantee if the transaction mortgagor, fair, is of an intention to presumption alive keep security It is is very the interests of the strong. generally this party that the should not but position mortgage should be merge, pre- a served to retain over other incumbrances. As mort- priority the land is not the debtor bound gagee acquiring off party either or the other land, incumbrances on mortgage there intent, is out his nothing prevent equity carrying presumed a 2 Pomeroy, sec. 793. decreeing against merger.” title to real or property, has been legal personal, “Whenever fraud, concealments, actual or misrepresentation, obtained through influence, duress, weak- advantage undue one’s taking through necessities, other similar or circumstances through any or ness it for the holder of the title to legal unconscientious which rendet interest, con- the beneficial equity impresses and enjoy retain thus who on the favor the one property acquired trust structive same, never although may entitled is truly equitably estate therein.” Sec- Pomeroy’s Equity, had any legal have perhaps tion 1053. after rules announced reviewing opinion,
In a well considered Robbins, 255 case of York v. (Com. in the App.) Pomeroy 720, said: W., it is that, when the title to rule is the general it “While the mortgage in the same person, become vested debt the mortgage 542 title, and becomes merged extinguished, yet the mortgage alive for
may kept title, of the protection purchaser will be no there contrary merger intention of the parties. Law, 15 319, Am. & Enc. Eng. Gleason, et Pike p. 60 seq., citing Iowa, W., 210, 150, 14 N. and other authorities.” Shoe Hapgood Crockett, First Bank Co. v. Nat. Texas 506, 23 Civ. 56 App., W., 995. “To constitute must highest be taken merger, security debt, satisfaction the contract and not as collateral to Stamper it. Texas, 1; 3 Allen, 589, Graves v. 2 Johnson, 192.
“The whether or not the intended that a parties question merger is a It of estate should take of fact. is not settled place question Ind., Meter, v. Van mere deed. Chase recording E., But the intention that be no N. there should be shown the fact does can merger may mortgagee the debt or release cel or surrender the evidences of the mortgage, Ill., v. Perry, retains them. Burton contrary but on the Riddle, Ill., 22; E., Peterborough Savings Dunphy 34 N. Rice, Pierce, Neb., 75 N. Coleman Co. v. Bank v. *18 5; Mich., 62 E., 104 Johnson, Gibbs Ga., 115 42 Williams, H., 489, 862, 68 Atl., N. Quimby N. 685.” Am. St. Rep., Preston, successor, did not intend at the time
That that the of redemp- the deed from of receiving Hill, is of them and foreclose rights in merged tion would acts. It is undis- in of their the light considered when conclusive interest; that LaRue and not could pay that Woodward puted the notes or interest of either principal unable pay Parker were were un- which Hill; they that of judgments abstracts by executed land; constituted lien against recorded and had been able pay an under with of did take possession that Lloyd notes; the revenue it and apply to rent Hill that inwas by Lloyd the land of that estate, re- executor.of his and the successor of Preston, the filed Woodward; against in 1923 he suit that a deed ceived notes and fees of the attorney’s interest and for the principal, Hill amount fore- that him personally took judgment the land. lien against the vendor’s closure of contending were in 1924 that they is further shown It rights claiming were they prior that this state of courts appellate Hill by notes executed lien the vendor’s reason of by this land *19 stat- of the to invoke the protection in no position is debt, certainly Hill. The of this law the legal rights defeat of frauds to ute to title to one who action of trespass try remedy as a state gives to try lands. The remedy trespass has the right possession title and or interest where all cases is title given Texas, 562, Beaty, Hardy be involved. land may Bender, W., 80; Mason v. 97 S. Rep. Am. St. 19 S. 715. App.) (Civ. Ross, 33 the case of Foster upon rely principally Defendants contention 990, to sustain their App., Civ. Tex. that the statute of frauds in this case. In applies our opinion, facts in that case are different from the facts in In the this case. Ross, case of Foster v. Burnett secured a judgment foreclosing vendor’s lien and sold the at foreclosure sale and property bought in and the sheriff made a Foster property deed to it. Mrs. on an of Burnett her sued the land to alleged promise reconvey after a he it at foreclosure sale. court in held The that case bought that the statute of frauds did In no this case apply. deed from sheriff. He did but of foreclosure get judgment sale has been made Preston has no under ever and judgment no title to the under of foreclosure. property acquired judgment In order to sustain defendant’s that the statute of frauds theory case, in this we would essential facts have prevails ignore alleged by plaintiff. contention no
Nor do we think there was urged Hill with consideration for made between Lloyd same, of the reference to land Lloyd taking possession renting contract, or Under the terms of was to is sound tenable. Lloyd therefrom to the take of the land and the rents apply Hill’s due Hill. Preston the successor of became debts by Hill to was not by Lloyd. Lloyd to collect debt owing the. agent nor Preston took Hill him. conveying anything selling anything the land under the contract in 1921. In claims to 1922 he charge from and in several instances after- have obtained deed the vendor’s the land and wards claimed lien against sought obtain to that effect. foreclose his lien on the the land virtue of Until he was enjoined selling equities Hill, him and he never claimed the to rescind between existing title At the time Lloyd to the land. and recover the possession land and the rents to the of Hill’s take the apply agreed due, debt, of which was not then he had no conveyance the principal deed from Woodward was obtained later. from Woodward. contract made between and Hill That it was virtue and collected the rents that Lloyd got possession set out. we come to as has been When already from year year law to the facts the well principles recognized contract made is clear that the it by plaintiff, consideration. 13 C. J., sufficient supported sec. of Hill announced the case the rule
It contended W., 871, 40 L. R. Texas, 594, (N. S.) A. Hoeldtke, 104 *20 To case. to contention. this do not this controls We agree bar, at announced in the case the rule case to foregoing apply main to be over and essential facts this case would require At case, are the salient facts in the Hill supra? looked. What was outstand the land there McLeary time purchased land, amounts, $140, for which other note ing among against Hill had at the time the trade was made McLeary represented at the fact, a matter note had not been paid As been paid. thereafter was made, was short while time the trade but within reconveyed for At the time Hill cancellation. McLeary returned not know the facts in McLeary regard the land to did note, McLeary and his reconveyance status of $140 been land not because of fraud to have any supposed practiced was was rendered favor McLeary. him upon Judgment notes, fee, and Leach for attorney’s Hoeldtke their interest and Horstman and with foreclosure of the vendor’s against McLeary, all the defendants. judg lien on the land No against personal In this it is ment was rendered Hill. case against the land Hill and took vendor’s lien notes against conveyed Parker, re Then Hill the land to LaRue and land. conveyed him, and then a vendor’s lien the land secure against taining Woodward, Parker who took the LaRue and the land to Wood executed Hill to subject Lloyd. indebtedness Parker ward refused to or the LaRue and pay *21 ises are extinguished. case, from the in Quoting opinion the court said:
“Masterson caused the having decree to be executed and having the land at the purchased sale, execution is in the same position as he if from purchased-directly Disney; hence the case is not from that of a distinguished principle who has con- mortgagor the ato veyed who has assumed mort- grantee the debt and who in turn gage the land to conveys the In mortgagee. such a case the title united in legal equitable the mortgagee he debt, his claim to the waives all mortgage adverse claims if the premises are but can he extinguished, proceed against the debt? In mortgagor similar cases the authorities original seem to hold the depends upon the question merger intention of the and the parties the transaction. The equities particular of of rule, however, seems to be that where the. ordinarily, mortgagee land, the he acquires redemption the elect to treat equity may of existence, the or as still in as his interest mortgage merged may require, provided'this be-done without to the may prejudice rights either party there no to the being contrary.” (Italics ours.) to the contention of the defendants under the deed
According Preston, from Woodward- to in Preston. the title was legal merged He also held Hill’s vendor’s lien for the- money notes given purchase this land. with 'What did do reference the title ór lien? He elected to affirm the and to foreclose his lien contract which him from the contract and prohibited recovering rescinding the title and of the land. Gaines the possession Judge foregoing n further opinion says: “But when the has the mortgagor mortgaged premises debt, has as between and the assumed the land grantee mortgage all under the latter becomes mortgagor persons claiming fund for the of the debt.” primary payment Masterson, is in the case of Harris v. supra, When opinion case, in that in the in this we find no conflict read facts light this with the conclusions reached in case. opinion facts rules principles foregoing Applying issues are raised: in our by plaintiff, opinion following Preston were mortgagees That (a) the land. bound to rents such are That as mortgagees,
(b) due Hill. land to payment derived from the debt Hill and he is en- That rests redemption (c) upon titled the title notes executed him. vendor’s lien of the vendor’s are entitled to a foreclosure That defendants
(d) land, subject equities-to-which lien notes entitled. made the contentions
It we have said follows what cannot cause of action alleged by plaintiff defendants against trial court in our judgment It also follows be sustained. to plaintiff’s petition. demurrer in sustaining general erred *22 Civil the Court of Appeals judgments We conclude remanded this be cause be reversed court should trial this opinion. trial in accordance with for another court district Court, as the the Supreme opinion adopted The foregoing trial and the court of Civil Appeals of the Court and the judgments court remanded to the district cause reversed, and this will another trial. Cureton, Chief
M.C. Justice. Company. Hall Music Viola Lee v. Mrs. January Decided
No. 5111. Series, 685.) 2d
(35 S. notes Richard plaintiff’s Lloyd, and where Parker and LaRoe in turn sold to Scott Wood- ward, who bought subject notes, Richard Lloyd while title is Woodward, Scott outstanding an plaintiff oral alleges agreement by Richard this title acquire into go posses- sion and farm the land and account for rents as a credit plaintiff on plaintiff’s notes to Richard Lloyd, such is within
Notes
notes the vendor’s the holder ing the notes Hill on elected to sue having controversy, the premises
notes December, that demanded that Hill thereof sion notes; he did surrender the notes interest pay Hill from the payment or to release the notes. agree take of the land' it possession and rent That then agreed That rents to the debt. did and apply under such of the premises into enter Preston, executor, his successor and col- December, 1921, and on the 1922 the sum premises during the rent year from lected 7, 1922, December procured then on deed $15,000 That thereafter January, the premises. executor, sued Hill on the notes and obtained as Lloyd’s Preston the foreclosure the vendor’s lien therefor lien. of trust the deed until premises remained That Janu- he of Hill judgment; he demanded when ary, had collected from the rent of time, Preston that during that when demanded $49,000; sum judg- rented premises applied from the collected money
on notes his and foreclosure on lien, his vendor’s entered into an Lloyd with Hill to take of the land from Woodward and the rents. de Hill, rived therefrom to the of the payment, indebtedness due by acts, and by subsequent indicated that he plainly had elected to affirm the contract and sue for his debt. The rule seems to be that if established purchaser the equity has not assumed redemption the mortgage, primary obliga- tion still on the resting purchaser mortgagor, may discharge debt and he becomes thereby to the of the mort- subrogated rights gagee. Cyc., announced in the rules to the the principles foregoing' Applying obli- petition, plaintiff’s primary facts alleged Hill with the discharge rested upon corresponding gation become subrogated rights mortgagée. debt and kind between Woodward and any was no contract of There Hill Woodward. Woodward between quit. and none He abandoned or was ready the interest. He refused to pay Parker did not the interest LaRue and pay abandon premises. and were unable to pay. had defaulted They or the principal. abandon the interest and ready to pay refusing With Woodward inter- Parker unable to pay. LaRue and being with the premises; under the facts' notes, one est or pay —which was not the Under the facts alleged of possession? He the land. demanded of a lien held merely but owner method and then agreed the notes toHill the land have should which was payment, that.
notes original Lloyd. that Preston discovered that when plaintiff further It is Woodward, Preston from a deed said premises had procured indi- for himself said land he had bought stated plaintiff was not hence plaintiff as vidually agent from collected Preston rents and revenues to have the entitled It and judgment. of the notes satisfaction applied were lease and option that while is further shown for the taken were Preston, nevertheless name of in the made estate; while deed benefit for the land, accepted it taken unto conveyed estate. of the benefit following announces the Jurisprudence his Equity Pomeroy rules: well established an equal fee—and example, estate —for the legal “Where the merger same person, unite estate equitable coextensive takes in the place equity, absence of acts an intention showing it, as prevent certainly and as as at directly the law. Under these circumstances, facie merger prima equitable well as legal If, however, rule. holder of equitable estate obtains the fee, it to legal procures a trustee with an ex- press declaration shall there be no then it seems that merger, a court of will not permit merger opposition to such a direct intention. Where as, the owner of a legal for ex- estate—
notes virtue of the vendor’s lien and, asserted their rights by in 1925 that an order of sale issued for and having by taking but were to foreclose the vendor’s lien pre- and undertook amount not It is to be noted that the injunction vented by injunction. al., Preston, not a valid et did have on the ground sought limitation, but solely were barred they the land or Hill reason of the of the equities belonging ground upon under that contract. the acts of and Preston contract and Preston, al., et demonstrate conclusively the acts of We think land, but that they not elect to rescind and recover the did they affirm and obtain judgment against elected to individually the land. elected lien against Having foreclose the vendor’s De- Hill. also fixed they legal rights their rights, legal fixed their choice of remedies. had the select When fendants right their as well as the legal fixed legal rights rights was done they matter. But when did make no voice they Hill. Hill had not bound it. The did rights parties choice were law. either became fixed They rest caprice party. upon Hill with a fore- to have judgment against Preston Hill had the the notes lien. closure of vendor’s state the land be sold. The courts of this land or let and take the who invokes the jurisdiction any party look with disfavor upon obtain thereunder and certain rights certain rights the courts gain assert in cause and then another adversary, over and advantages suit, in the former being contrary matter disclaimed very Smith v. equity. Chipley, (Com. App.) of right every principle (2d) S. W. in this case. statute of frauds does In our judgment, the land as and trustee mortgagee the possession holding for the contract and seek judgment to affirm the elected and having lien; made a contract to take pos- having foreclosure of debt of Hill’s the rents to the payment and apply the land session
notes interest. it of Hill were unable to and did not it. demanded pay whereby of the notes entered into an payment was to the rents to Lloyd took the land and Afterwards, Preston, suc of the debt due Hill. estate, the amount and executor his sued Hill for cessor took him individually of the notes and lien, and notes with a of his vendor’s amount of the foreclosure facts of this was thereon. think that the an order of sale issued We Hoeldtke, of Hill supra. case it from the case clearly distinguish intended to said what the Court Supreme Much has been about Masterson, Texas, 171. Judge hold in the case Harris v. case, Harris, Gaines, in his in that says by conveying opinion but he also had lost the Disney, redemption, land to that the title become merged the facts that case under says this force in Masterson and merger effect claim, that if he Masterson’s waived election on part, all prem- adverse claims mortgaged debt mortgage