124 S.W.2d 929 | Tex. App. | 1939
Owning in fee simple H. T. C. Secs. Nos. 63, 75, and 79 in Chambers County, on the 10th day of December, 1915, H. Roedenbeck executed to E. J. LeBlanc, trustee, a deed of trust on these three sections of land, filed for record in Chambers County on the 14th day of December, 1915, to secure the payment of four promissory notes executed and delivered by Roedenbeck to J. E. Broussard, of even date with the deed of trust, numbered 1, 2, 3, and 4, each for the sum of $2,880, and payable, respectively, 2, 3, 4, and 5 years after date. On the 16th day of April, 1919, Roedenbeck sold Secs. 75 and 79, and Broussard released these sections from his deed of trust lien. In the release it was stipulated that the release of Secs. 75 and 79 was not to effect the lien against Sec. 63 to secure the balance of the Roedenbeck indebtedness to Broussard, which amounted to the sum of $4,630. A part of the purchase price was paid by Roedenbeck to Broussard, and by him applied as a credit on the indebtedness of 1915, secured by the deed of trust, and a part on other indebtedness against the property. Roedenbeck retained about $1,500 of the consideration received by him for Secs. 75 and 79. Roedenbeck defaulted in the payment of the balance due on the indebtedness, and, under instructions from Broussard, LeBlanc, the trustee, sold Sec. 63 on the 5th day of May, 1931, and Broussard became the purchaser; and on the 6th day of May, 1931, he executed to Broussard his deed as trustee, conveying to him Sec. 63. On the 29th day of June, 1933, Broussard executed to the Humble Oil and Refining Company a mineral lease on Sec. 63, and on the 30th day of June, on a valuable consideration, he conveyed Sec. 63 to himself, C. E. Broussard, and J. E. Broussard, Jr., as trustees of the Broussard Trust. On the 27th day of August, 1934, the Broussard Trust conveyed to Marrs McLean and R. R. McDonald, each, a 1/4 interest in the mineral rights in Sec. 63, subject to the mineral lease held by Humble Oil and Refining Company. J. E. Broussard and those holding under him will be referred to as appellees.
On August 3, 1917, H. Roedenbeck conveyed to Sebo Harms and wife, of the State of Illinois, the N.W. 1/4 of Sec. 63, retaining in his deed the vendor's lien against the land to secure the payment of $1,600 of the purchase price, evidenced by promissory notes. On the 2d day of July, 1917, Roedenbeck conveyed to P. Hansen the N.E. 1/4 of Sec. 63, retaining the vendor's lien to secure the payment of $1,050 of the purchase money, evidenced by promissory notes; these notes were paid by Hansen, and Roedenbeck executed to him a release of the vendor's lien. On the 27th day of December, 1917, Roedenbeck conveyed to Samuel Miller and wife, of the State of Indiana, the S. 1/2 of Sec. 63, retaining in his deed the vendor's lien against the land to secure the payment of $1,926 of the purchase money, evidenced by promissory notes. Neither of Roedenbeck's grantees assumed any part of his indebtedness to Broussard, secured by the deed of trust against Secs. 63, 75, and 79, nor did they take title subject to the Broussard indebtedness. The Harms deed was filed for record in Chambers County on the 11th day of March, 1920; the Miller deed, on the 4th day of January, 1918; and the Hansen deed, on the 5th day of July, 1919. On the 29th day of March, 1924, Roedenbeck conveyed Sec. 63 to the Roedenbeck Farms, Inc., a corporation. On the 25th day of February, 1935, Harms and wife conveyed to H. Merlyn Christie, on the consideration of $600, their interest in Sec. 63; about the same time Mrs. Miller *932 and the heirs of her deceased husband conveyed to Christie, on the consideration of $2,000, their interest in Sec. 63; on the 28th day of March, 1935, Hansen, on the consideration of $2,000, conveyed to Christie the N.E. 1/4 of Sec. 63, reserving a 1/32 royalty interest. Roedenbeck, Roedenbeck Farms, Inc., Hansen, and those holding under Hansen, Sebo Harms and Samuel Miller will be referred to as appellants.
On the 25th day of October, 1935, Roedenbeck Farms, Inc., instituted this suit in trespass to try title against appellees and the other appellants to recover the title and possession of Sec. 63, containing 640 acres. Appellees answered by pleas of not guilty and by special pleas of the several statutes of limitation, etc. Though instituted as an action in trespass to try title, in fact the purpose of the suit, as between appellants and appellees, was to cancel and annul the sale made by LeBlanc, trustee, to J. E. Broussard on the 5th day of May, 1931; the issue to cancel this deed was made for the first time by pleadings filed in May, 1937.
The case was tried to a jury, and on its verdict and the undisputed facts, judgment was entered against appellants that they take nothing against appellees insofar as they held under J. E. Broussard. Since the judgment of the lower court must be affirmed, the pleadings and evidence of appellants, as among themselves, become immaterial. The record consists of a transcript of 855 pages, and a statement of facts of fourteen volumes of 3087 pages. The great record and the many issues have placed upon the parties a tremendous burden of briefing, and we extend to counsel our appreciation of the able briefs filed by them. We shall review only the issues and their supporting facts, attacking the validity of the sale made by LeBlanc, the trustee, to Mr. Broussard on the 5th day of May, 1931. The appeal was perfected to the Galveston Court of Civil Appeals, and transferred to this court by order of the Supreme Court.
Appellants contend that they are entitled to equitable relief on the ground that Mr. Broussard released from his deed of trust Secs. 75 and 79 without requiring Mr. Roedenbeck to pay to him, as a credit on his indebtedness, all the proceeds of the sale. For a subsequent purchaser of mortgaged premises to invoke the rule that the mortgagee may not release from his mortgage other portions of the mortgaged premises, without crediting the mortgage debt with the value of the premises released, he must allege and prove that the mortgagee acted with knowledge of his claim. Biswell v. Gladney, Tex.Com.App.,
Appellants' second attack on the deed of trust lien and the sale made by the trustee is based on their propositions that, long prior to the trustee sale, the Broussard debt against Roedenbeck was barred by limitation; on this proposition they claim to hold Sec. 63 free of the Broussard debt. We have given above the dates, maturity dates, and the amounts of Roedenbeck's four promissory notes to Broussard; the date of the deed of trust; the disposition made by the parties of the proceeds of the sale of Secs. 75 and 79; and have made the statement that, in releasing Secs. 75 and 79 from his deed of trust, Broussard expressly stated that the release was not to effect his lien as it existed against Sec. 63 to secure the balance of his debt. By the undisputed facts it was shown that, on May 15, 1919, when Roedenbeck paid to Broussard a part of the proceeds of the sale of Secs. 75 and *933 79, the mutual understanding between Roedenbeck and Broussard was that Broussard was to cancel and surrender to Roedenbeck notes Nos. 1 and 2, which, at that time, were past due; notes Nos. 3 and 4 were not due; through a mutual mistake, Broussard's book-keeper surrendered to Roedenbeck notes Nos. 3 and 4. On the 19th day of April, 1923, after Hansen had paid to Roedenbeck his vendor's lien notes against the N.E. 1/4 of Sec. 63, and after notes Nos. 1 and 2, had they not been paid, were barred by limitation, in the exercise of due diligence after the discovery of the mistake in surrendering to Roedenbeck notes Nos. 3 and 4 instead of notes Nos. 1 and 2, Roedenbeck, Broussard, and LeBlanc, the trustee, entered into a written contract to the following effect: The facts of the mistake in the surrender by Broussard to Roedenbeck of notes Nos. 3 and 4 instead of notes Nos. 1 and 2 were recited in detail; notes Nos. 1 and 2 were substituted for notes Nos. 3 and 4; and further as follows;
"Whereas, said Notes Nos. One and Two hereby substituted for Notes Nos. Three and Four, are long past due and unpaid, and the said Herbert Roedenbeck is desirous to have said notes extended, so that the due dates of said past due notes shall be January 1st, 1924;
"Now, therefore, in consideration of the extension of the term of payment of said notes made by the said J. E. Broussard the legal holder of same, I, the said Herbert Roedenbeck, do hereby renew, perpetuate, ratify and affirm said debt, and agree to pay same on the 10th day of December, 1923, and agree that the deed of trust lien given to secure the same shall remain in full force and effect until said notes are paid, according to their face, terms, tenor and reading, and agree to the substitution of notes One and Two for Three and Four."
Roedenbeck was the only one of the appellants who was a party to that contract or, at the time it was executed, even knew of its execution. On these facts, appellants contend that all of the Broussard indebtedness against Roedenbeck was barred by limitation when the renewal contract was executed on the 19th day of April, 1923, and that the contract did not have the effect to renew the indebtedness against them; they contend that they hold Sec. 63 free of the Broussard lien. We overrule that contention. On the day the renewal contract was executed by the terms of the original contract notes Nos. 3 and 4 were not barred by limitation. It was the intention of the parties, Roedenbeck and Broussard, that notes Nos. 1 and 2 should be paid and delivered to Roedenbeck, and not notes Nos. 3 and 4. The mistake of the book-keeper in cancelling and delivering to Roedenbeck notes Nos. 3 and 4, instead of notes Nos. 1 and 2, did not, in law or in equity, constitute a payment of notes Nos. 3 and 4. The deed of trust secured Broussard's debt, and not merely the notes as evidence of the debt. The payment was made as a credit against the Roedenbeck indebtedness, and the bookkeeper, through his mistake, did nothing more than to surrender to Roedenbeck the wrong notes in evidence of the payment. When a contract has been made, and the parties make a mistake in its execution, equity, in an action not barred by limitation, will grant relief against the mistake. A court of equity would have corrected the mistake for Broussard, and in an action between him and Roedenbeck for that purpose, the subsequent grantees under Roedenbeck would not have been necessary parties; this follows because Broussard's cause of action against Roedenbeck for correction of the mistake was not barred by limitation when the contract of extension and correction was made. It is the law that the parties can do for themselves what the courts would compel them to do. McCrory et al. v. Lutz, Tex. Civ. App.
But appellants say that Roedenbeck's subsequent grantees were necessary parties to the contract of correction, renewal and extension; in this contention they are in error. The subsequent grantees, having taken their title before any part of Broussard's debt was barred by limitation, and not having purchased subject to the Broussard indebtedness, and not having assumed any part of the Broussard indebtedness, took their title from Roedenbeck subject to his right and power, before his indebtedness to Broussard was barred by limitation, to enter into a contract with Broussard to extend the indebtedness and the lien. Howell v. Townsend, Tex. Civ. App.
On the 3d day of December, 1927, Broussard's indebtedness against Roedenbeck, before any part of it was barred by limitation, by contract in writing between them, filed for record on the 8th day of March, 1928, was again renewed and extended, payable on the 1st day of January, 1929. The authorities, giving Roedenbeck authority and power to renew the notes by his contract of April 19, 1923, support his right and power to enter into the contract of renewal and extension of the 3d day of December, 1927.
On the facts and legal conclusions stated above, on the 5th day of May, 1931, Broussard held a valid lien against Sec. 63 to secure the payment of the balance due him by Roedenbeck on the indebtedness of 1915; and on that day, as stated above, on the trustee's sale, he purchased Sec. 63. Appellants attack the regularity and validity of the sale by the trustee, contending that it was absolutely void. The original notes and deed of trust were executed on the 10th day of December, 1915, when the amendment of 1915 to Art. No. 3759, Rev.St. 1911, was in effect, Acts 1915, 1st called Sess., c.
It is conceded that the trustee gave notice of his sale as provided for in that portion of the amendment written in italics; under the facts, no other sort of notice was given though it was provided in the deed of trust that, in making his sale, the trustee should give notice to "such parties as are interested" by delivering or mailing a copy of the notice "to their last known address."
Appellants contend that Roedenbeck and his subsequent vendees, and those holding under them, fall within the classification of "such parties as are interested," and that the failure of the trustee to give them notice as provided in the deed of trust rendered his sale absolutely void. We overrule appellants' proposition.
For the purpose of this opinion, we shall not define the term "such parties as are interested," but shall decide the point raised by appellants' proposition on our conclusion, that, in giving his notice, the trustee literally complied with the amendment of 1915, and that his sale was valid, vesting in Broussard the fee simple title to Sec. 63, and extinguishing the claims of Roedenbeck and all parties holding under him adverse to appellees.
We quote the following proposition from appellants' brief filed on the 10th day of January, 1939, after submission on the 22d day of December, 1938: "Throughout appellees' brief they assume that the trustee had the power to make said sale and execute the deed. The deed of trust does not give the trustee this power unless and until he gives the notices provided for in the deed of trust." By force of law, the amendment of 1915 *935
was made a part of the deed of trust to the same effect as if it had been written therein by the parties; Kerr v. Galloway,
On our construction of the amendment of 1915, appellants attack it as being unconstitutional; they say we are giving it a construction which constitutes an unlawful interference by the Legislature with the right and power of private contract. In Wylie v. Hays, supra, the Supreme Court held the amendment constitutional; appellants say that this holding was justified on the ground that the issue there made invoked the police power of the state. But they insist, on the facts before us, that the police power was not invoked; that the provisions of the deed of trust calling for personal notice to "such parties as are interested" did not invoke the police power. The facts of this case do not invoke appellants' constitutional question. Where the amendment, and nothing else as to notice, was written into the deed of trust, the parties simply contracted for notice of sale to be given in one of the three alternative methods. The point is made clear by the amendment of 1925, Art. No. 3810, pertinent parts reading, "Notice of such proposed sale shall be given by posting written *936 notice thereof for three consecutive weeks prior to the day of sale in three public places in said county or counties, one of which shall be made at the courthouse door of the county in which such sale is to be made * * * or the owner of such real estate may, upon writtenapplication, cause the same to be sold as provided in said deed of trustor contract lien." (Italics ours.)
By this amendment, the Legislature construed the pre-existing law as not giving to the contracting parties the right, when nothing more was provided for in the deed of trust than the express terms of the statute, to demand that written notice of the sale should be given to the mortgagor. The amendment of 1925 gave the mortgagor, upon written application, the right to demand that his land be sold in the specific manner provided for by the deed of trust to the exclusion of the other statutory methods. In the case at bar, had the parties written into the contract the conditions of the 1925 amendment, and then had the trustee failed to comply with those conditions, we would have before us appellants' constitutional question. But the parties did not do that; they simply wrote into the contract, by force of law, the three alternative methods provided for in the amendment, and these three alternative methods were of equal dignity, each with the other. We are not holding that the parties did not have the right to write into the deed of trust an exclusive method of notice, but only that they did not so contract.
The law, as it existed prior to the 1915 amendment, does not give support to appellants' proposition that the failure to give notice to "such parties as are interested" made the sale void. Prior to the enactment of 1889, c.
In our judgment, what we have said disposes of the determinative issues of this appeal, and we pretermit a discussion of all other propositions and counter propositions.
The judgment of the lower court should be in all things affirmed, and it is accordingly so ordered.
Affirmed.