205 S.W. 737 | Tex. App. | 1918
Lead Opinion
J. D. Rawlings conveyed to S.E. Gates section 185, in block I T., Dallam county, retaining in the deed of conveyance a vendor's lien to secure the payment of certain notes executed by the said Gates. A deed of trust with power of sale was also executed by Gates to secure the payment of these notes. The notes were duly transferred to D. E. Powell, who attempted to appoint a substitute trustee under the deed of trust, and this substitute trustee, purporting to act under the powers of the deed of trust, sold the land and it was bought in at such sale by D. E. Powell. The substitute trustee's sale and deed were set aside in a suit brought by Etta M. Lewis, who had acquired Gates' interest in the land, on the ground that the appointment of the substitute trustee and sale by him were unauthorized. Rawlings v. Lewis, 191 S.W. 784. D. E. Powell then filed this suit against Etta M. Lewis to foreclose the vendor's lien retained against said section of land to secure the payment of said notes. J. H. Lewis and W. I. Gamewell, having acquired an interest in the land through the said Etta M. Lewis, intervened as defendants. The defendants in their answer set up the facts already stated in reference to the attempted effort of the said D. E. Powell to have said land foreclosed at trustee's sale, and in this connection pleaded that they had been at large expense, such as attorney's fees, etc., in procuring the judgment setting aside said sale. These facts were pleaded as an election of the method of foreclosure, precluding the said Powell from subsequently pursuing the present alleged inconsistent remedy of foreclosure through the courts. The court below sustained an exception to this pleading of the defendants and the assignments complaining of such action present the principal question on this appeal.
Appellee Powell, according to the allegations of appellants' answer had two methods of foreclosure: One by trustee's sale; the other by foreclosure in the courts. These two remedies, we may assume for the purposes of this decision, are inconsistent, at least they cannot be concurrently exercised though they may be cumulative. We may also assume that a conclusive election to pursue one remedy would estop the use of the other. So that the question we are to decide is whether the facts alleged show such an election on the part of Powell to pursue his remedy of foreclosure by trustee's sale as to estop him from resorting to this other remedy of foreclosure through the judgment of the courts. The authorities are not agreed on the rule that should control the determination of the question as to when an election may be said to have been conclusively made. Some of the authorities assert that any unequivocal act indicating the adoption of one remedy constitutes an election and precludes the abandonment of it and use of the alternative remedy although no benefit has been acquired or detriment done to the other party by the proceeding; for instance, that the filing of a suit in assertion of one remedy constitutes a conclusive election though the suit may be dismissed. R.C.L. vol. 9, p. 961; Register v. Carmichael,
Appellee paid the sum of $22.56, state and county taxes, on the land for the year 1915, and the judgment of foreclosure included said amount in addition to the amount due on the vendor's lien notes. No personal judgment was sought or obtained either on the indebtedness represented by the note or that due for taxes. The taxes were assessed against the land after the creation of the vendor's lien, but prior to the acquisition of the land by the defendants. There is no question as to the validity of the tax assessment, but appellants contend that, although the mortgagee was compelled to pay the taxes to protect his lien, his right is personal against the mortgagor or his assignee owning the land at the time of the assessment and he has no lien on the land. We do not agree to this proposition. We are of the opinion that such mortgagee, so paying the taxes, should be subrogated to the lien created by the tax assessment. Jones on Mortgages (6th Ed.) § 1080; R.C.L. vol. 19, p. 401, par. 180; Williams v. Hilton,
HUFF, C.J., not sitting, being absent in Austin, serving on Committee of Judges.
Addendum
We think our findings sufficiently cover the facts necessary to be found in a proper consideration of the case, and therefore overrule appellant's motion for rehearing and also his motion for additional findings.
HUFF, C.J., not sitting.