91 S.W. 1110 | Tex. App. | 1906
Appellant recovered judgment against appellee J. C. Duncan for the amount of his debt, but to so much of his petition as sought to establish and foreclose a mortgage on a section of land in Ochiltree County, the court sustained exceptions. The main objection urged in these exceptions to the petition was that it sought to fix a lien on real estate by alleging a parol agreement to execute and deliver the mortgage sought to be established. According to the allegations of the petition, the appellees signed and acknowledged a mortgage, in the nature of a deed of trust, on a section of land in Ochiltree County, as security for a loan made and a further loan to be made by appellant to appellee J. C. Duncan, but, instead of delivering it, J. C. Duncan fraudulently destroyed it and conveyed the land to his wife without consideration, after he had obtained from appellant the possession of the promissory note given to evidence the loan, on the promise that he would take it and the deed of trust to the county seat and have new papers prepared so as to include in one note and mortgage the sum named in this note and an additional sum. He not only destroyed the undelivered mortgage, but also the note, and refused to execute any other papers. His insolvency was also alleged.
However much we might desire to express our disapproval of the reprehensible conduct of the appellees as alleged in the petition, we hardly see how we could reverse the judgment sustaining exceptions to the petition and give to the statute requiring conveyances of land to be both executed and delivered the effect which our Supreme Court seem to have given it. (Rev. Stats., art. 624; Castro v. Illies,
The allegations of fraud and insolvency do not seem to be material. The result would have been the same to appellant if, acting in good faith, Duncan had merely failed to deliver the mortgage. His destruction of it with a bad motive did not place appellant in any worse position. We need not discuss the effect of insolvency.
The judgment is affirmed.
Affirmed.
Writ of error refused.