27 Tex. 241 | Tex. | 1863
The fact is patent that Wyatt and wife purchased the property from Phillips and wife, subject to the debt charged
Has the debt secured by the mortgage to Lewis been discharged ? The appellees insist that it has. If so, it is evident that it has not been paid by Wyatt and wife, or by the property upon which, by their express agreement, it was charged; and which evidently was to be the primary fund, from which payment of it was to be looked, if, in any event, Phillips and wife were to be liable for it. Can the appellees insist that the debt was paid by the illegal and void sale of the mortgage property ? We think not. This court, in the case between the parties in which the present appellants were seeking to establish a title as purchasers under this mortgage sale, say : “ But after his (Wyatt’s) death, the power being thereby revoked, the sale by the trustee was unauthorized, and, consequently, inoperative to foreclose the equity of redemption remaining in his legal representatives; was not binding upon his estate, or effectual to give title to the purchaser at the sale.” Shall it be said, that although the sale was inoperative to pass the title
It is a matter of no importance whether the note was in actual existence or not, or whether it was still susceptible of assignment as negotiable paper. The facts show that the debt evidenced by it was unpaid, and that Phillips and wife and Lewis had, for an adequate consideration, passed it to the appellants, together with the lien, for its security, as far as they could do so. And having been duly authenticated and presented to the administrator, (if, indeed, that were necessary,) and rejected by him, appellants were authorized to bring suit to establish and enforce it; and as the proceeding was for the purpose of subjecting the homestead to sale, the heirs of Wyatt were properly joined with the administrator as parties.
It may be said, on the other hand, that Phillips and wife were directly interested in the subject matter in litigation, and were not only proper, but necessary parties, and not being before the
The objection that the suit was intended to charge Wyatt’s estate with the payment of the debt of another party, for payment of which he did not bind himself by a promise in writing, is answered by the fact already adverted to, that the leading object of the suit was not the recovery of judgment against the estate for the debt, but to subject the property charged with its payment for its satisfaction. It presents nothing more than the ordinary case of pursuing a trust fund into the hand of a third party, to whom it has passed. But if the object were to obtain a judgment against Wyatt’s estate for the debt, it appears by no means clear that the -objection would be well taken. If a party received money from A. to pay to B., the latter may maintain a suit against him for it. And if one, for sufficient consideration, undertake to pay a debt due to-another by a third party, such undertaking is not within the statute of frauds. It may, we think, be well said, in view of all the facts in the present case, that it falls within this rule. The debt was contracted with the express understanding and agreement .that it was to be liquidated by Wyatt and wife. It was, in fact, a
On the trial a jury was waived, and the case upon the facts, as well as law, was submitted to the court; and in such cases it is usual in this court, if it is apparent from the record that the proper judgment can be rendered here, not to remand the case upon its reversal, but to pronounce such judgment as should have been given in the court below. But in the present case, it appears that the-appellants are in possession of the mortgaged property; the debt is consequently entitled to a credit to the amount of rents they hav'e received; and as the amount received is not shown, the case must he remanded for further proceedings in the District Court.
The judgment is reversed and the cause remanded.
Reversed and remanded.