94 S.W.2d 761 | Tex. App. | 1936
Defendant in error brought this suit against plaintiff in error and several others, who are not parties to this appeal, on a note in the sum of $12,500, to foreclose a deed of trust lien on certain real estate located in the city of Mineola, Texas, securing said note, and for interest and attorneys' fees. *762
Plaintiff in error answered by general demurrer and special exceptions which were overruled by the trial court, general denial, special denial to the effect that at the time of renewal of said note and deed of trust lien he was not the owner of the property covered by same and that the renewal of said indebtedness and the lien securing same were void, and that the original indebtedness sought to be renewed was barred by the four years statute of limitation.
It appears that the original note and deed of trust lien were executed by R. J. Gaston and wife on June 7, 1920, and was due and payable on June 1, 1925. On May 23, 1929, plaintiff in error who was the owner of the real estate covered by the deed of trust executed a renewal agreement whereby the note and deed of trust lien were extended until June 1, 1935. In due course the defendant in error became the owner and holder of the note and deed of trust lien. On August 14, 1933, plaintiff in error entered into a lease contract with one Hooks and wife which was to extend until December 31, 1935. Plaintiff in error made default in several installments of interest, and defendant in error under the terms of the note and deed of trust declared the whole indebtedness due, and on December 27, 1933, filed this suit. For four months prior to November 1, 1934, Mrs. Hooks, lessee of plaintiff in error, at the request of defendant in error, deposited the rents due by her on the property in controversy in a bank in Mineola, subject to the judgment of the trial court. The case was tried to the court without a jury, and judgment was rendered for defendant in error for his debt, interest and attorneys' fees, together with foreclosure of his deed of trust lien, and, further, for the rents deposited in the bank by Mrs. Hooks together with all rents which shall accrue prior to the sale of the property. From this judgment plaintiff in error has appealed to this court.
The only error assigned is with respect to that portion of the judgment of the lower court awarding to defendant in error the rent deposited in the bank by Mrs. Hooks and the rents to accrue prior to the sale of the property to satisfy said judgment.
The title to the property against which the deed of trust lien was fixed remained in plaintiff in error with the right to manage, use, and control the same until his possession was interrupted by entry of the defendant in error under the terms of the deed of trust, judicial sale, or the appointment of a receiver. In Willis v. Moore,
Therefore, in so far as the judgment of the trial court awards to the defendant in error the rents on deposit in the Mineola bank by Mrs. Hooks and other rents accruing from the property in controversy before the actual taking of possession of the property by defendant in error it is reversed and the judgment is here rendered for plaintiff in error for such rents. In all other respects the judgment of the lower court is affirmed.