Marsh v. Hubbard, 50 Tex. 203

Marsh v. Hubbard

50 Tex. 203 | Tex. | 1878

Gould, Associate Justice.

This was an action of trespass to try title to a lot in the city of Tyler, the plaintiff Hubbard claiming as purchaser at a sale made by himself as trustee in a deed of trust from Willis Roberts and wife, and the defendants, Marsh and Letchworth, claiming as purchasers at a sale under execution against said Willis Roberts, made prior to the trust sale, but subsequent and.subject to the prior lien of the trust deed.

Hubbard became security for Willis Roberts on his note for $5,375.63 to Burnett & Co., due January 1,1874, and the deed of trust expresses that it is to be void if Roberts should pay the note at maturity, “ saving said Hubbard harmless as against any claim against him on said note”; 66 but if said Roberts, his heirs or assigns, shall fail to pay off the whole of said promissory note, or any part thereof, at the time of its maturity, *208then and in that event the said Hubbard, whenever demand is made on him by said J. H. Burnett & Go. for the payment of said note, or any part thereof,” * * * may proceed to sell, and apply the proceeds to “ the payment of the amount said Hubbard may have to pay on account of said note as aforesaid.” The note not being paid at maturity, and payment being demanded of Hubbard by Burnett & Co., there can be no question as to his authority to proceed, after due notice, to sell; nor, under the decisions of this court, can there be any question as to his right to become himself the purchaser. (Howard v. Davis, 6 Tex., 174: Scott v. Mann, 33 Tex., 725.)

The deed made by him as trustee to himself was valid to pass the legal title to the lot, unless, as claimed by appellees, its validity is affected by his failure then or afterwards to pay over to Burnett & Co. $1,300, the amount of his bid. Marsh and Letehworth, who set up this defense, were in possession, as tenants of Boberts, at the time they purchased at the execution sale, and afterwards continued to hold possession for themselves. Our opinion is, that although by their purchase they became the owners of the equity of redemption, they had no such rights as enable them to raise the question of the payment of the purchase-money. The deed of trust was for Hubbard’s protection, and they could only exercise their right to redeem by relieving Hubbard from liability. Their rights were just the same, whether Hubbard at once paid over on the note the $1,300 bid by him, or, as it appears he proposed to do, conveyed the lot itself to Burnett & Co. It does not appear that they were in anywise hindered or impeded in the exercise of their right of redemption by the payment or non-payment of the purchase-money, and the case in that respect differs from James v. Jacques, 26 Tex., 320. However the case might be if Boberts and wife or Burnett & Co. were complaining, the appellants cannot. impeach the sale on the ground claimed. As against them, Hubbard’s legal title must prevail.

*209Counsel claims that before the trial Hubbard’s note was barred. It is not perceived that this could retroact to render the sale invalid.

The judgment is affirmed.

Affirmed.

[Justice Bonner did not sit in this case.]