22 S.W. 515 | Tex. App. | 1893
E.G. Puckett was the son of appellants, J.B. Puckett and E.C. Puckett, and was the owner of the land in controversy. On the 20th day of August, 1887, said E.G. Puckett, for a valuable consideration, conveyed by deed the said land to his mother, E.C. Puckett. This deed was not recorded until the 8th day of June, 1888.
On the 11th day of November, 1887, after the execution of the deed to his mother, and before its registration, the said E.G. Puckett, for a valuable consideration, executed his note to J.N. Porter for the sum of $388, to bear interest at the rate of 12 per cent, and stipulating for the payment of an additional 10 per cent as attorney fee if collected by suit, and secured this note by a mortgage upon the land. This mortgage was recorded on the day after its execution, prior to the registration of the deed to E.C. Puckett. E.G. Puckett was a single man, and at the time of the execution of said mortgage was living with his father and mother upon the land, and at this time the records showed the title in him.
The finding of the court below, that Porter had no actual notice of the deed to E.C. Puckett, can be sustained by the evidence.
E.G. Puckett died on the 1st day of November, 1888, leaving both his parents surviving him, and leaving no property except some notes and accounts amounting to between $1300 and $1400, but in reality of insignificant value, and these had been placed in the hands of his brother to collect and apply to the payment of certain specified debts. His estate was badly insolvent.
Appellant Grantham claims by purchase from his coappellants. *352 Appellees purchased the note from Porter after maturity, but paid value therefor, and instituted this suit in the District Court to foreclose the mortgage given to secure it, without administering upon the estate of E.G. Puckett, and only making his parents and the then owner of the land parties defendant. No personal judgment was sought against the estate of said E.G. Puckett or his heirs. Judgment was rendered in favor of appellees, ordering the land sold to pay the amount due on the note, any balance to be paid to appellant Grantham; and from this judgment this appeal is prosecuted.
Conclusions of Law. — No administration upon the estate of E.G. Puckett was necessary. The only relief sought by appellees was the foreclosure of their mortgage upon land, the entire interest in which had passed out of Puckett prior to his death. No judgment was sought against his estate for any balance that might remain after subjecting the land; he did not leave sufficient property to justify administration thereon; his administrator, if he had one, would have no interest in this controversy, whether the deed to E.C. Puckett or the mortgage of appellees be adjudged to have priority. In such case no useful purpose could be subserved by requiring costs to be incurred in making parties who have no interest to be affected by the litigation. This question has been so exhaustively and satisfactorily treated in the case of Heard v. McKinney, 1 Posey's Unreported Cases, 83, that we shall not undertake to add anything to what is there said. Also, see Jones v. Smith,
The court below found that Porter was not charged with notice of the prior deed to E.C. Puckett at the time he took the mortgage, and appellants challenge the correctness of this finding, upon the ground that the grantee in such deed was in actual possession at this time. It is true, E.C. Puckett and her husband were living upon the land, but the common grantor, E.G. Puckett, was also living upon it with them, and the records showed the title to be in him. For possession alone to be notice of an unrecorded deed, it must be exclusive as against the grantor, or the right of possession will be referred to the recorded title. Wade on Notice, 290; Smith v. Yule,
Finding no error in the judgment as rendered by the court below, it is in all things affirmed.
Affirmed.
A motion for rehearing was refused.
Chief Justice TARLTON did not sit in this case. *353