55 Tex. 266 | Tex. | 1881
In considering the fourth assignment of error, which presents the proposition that the facts are not sufficient to warrant the judgment, we
This question has been well and long settled in this state. It was decided in Wootten v. Wheeler, 22 Tex., 338, that mortgaged property is liable to be sold under an execution against the .mortgagor, subject to the lien of the mortgage, although it contain a power (as was the case in the appellant’s deed of trust) authorizing the sale of the property, by a trustee, upon default of payment by the mortgagor. Chief Justice Wheeler, in the opinion in the case cited, said: “It is the settled law of this state, that mortgaged property is liable to execution against the mortgagor, subject to the lien created by the mortgage.” The mortgagee in that case, by the terms of the mortgage, had power to require the trustee named in the mortgage or deed of trust to sell the property which was mortgaged, on default of making payment of the debt which was' secured by it. The opinion added: “ The mortgagee was not entitled to hold the property, exempt from liability to be taken and sold, subject to his lien, under execution against the mortgagor.” See also Gillian v. Henderson, 12 Tex., 47; Bullard v. Anderson, 18 Tex., 377; Wright v. Henderson, 12 Tex., 43; Baker v. Clepper, 26 Tex., 629.
Clearly the first issue in the case was correctly decided against the appellant; and not less clear is it, that the
The fifth assignment, that the judgment is excessive, is not well taken. The evidence warranted the judgment of ten per cent, damages to be assessed on the valuation placed upon the property at the time the claimant took the property under his claim bond. It was valued at nine hundred dollars by the sheriff, and the damages were assessed at ninety dollars.
The evidence which the record thus offered was a proper and sufficient basis for the action of the court, as we (commissioners of appeals) have determined in the case of Aiken v. Kennedy, decided at Tyler, 1880, upon the authority of Wright v. Henderson, 12 Tex., 43; Ratcliff v. Hicks, 23 Tex., 173. There was no evidence to rebut, satisfactorily, the correctness of the sheriff’s estimate of value, but the evidence offered on that subject tended rather to corroborate it. The defendant in the execution testified that a storm came the day after the 15th of September, 1875, which injured the cotton considerably, depreciating its value to about seven and a half cents per pound,—to the valuation of thirty-seven and a half dollars per bale. He does not state, however, how much greater was its value at the time when the claimant re
There being evidence to support the conclusion at which the court arrived, its judgment will not be disturbed merely because this court might not concur as to the precise amount of the valuation made of the value of the cotton, by the court whose province it was to determine that fact.
We conclude that there was no error in the judgment which was rendered below, and that it ought to be affirmed.
Aeeiemed.
[Opinion delivered May 17, 1881.]