Rogan v. J. S. Williams & Co.

63 Tex. 123 | Tex. | 1885

Delany, J. Com. App.

It is wholly unnecessary for us to discuss the numerous assignments of error, as the questions to be determined are very few.

The court did not err in rejecting the testimony of J. 0. Bogan, which was offered either to contradict or explain the deed from Rogan and wife to Longley and wife. Parol evidence was not admissible to contradict the deed. 1 Greenl. Ev., sec. 375. And there was no such ambiguity upon its face as would admit parol evidence to explain it. Id., secs. 289, 297.

The court was also correct, as we think, in holding that under the deed from Rogan and wife to Longley and wife, the latter became tenants in common; and that the respective interests which they took became their separate property. Bradley v. Love, 60 Tex., 473. Thus far we agree with the court below, but no further. In the further disposition of the case, the court, in our opinion, erred, as we will proceed to show.

The plaintiffs were the creditors of B. M. Longley alone. They had no claim upon Mrs. Longley or the other defendants, and they made the latter parties defendants only for the purpose of having the sale by the trustee Fentress to Mrs. Rogan set aside, in order that they might assert their claims against the property as the property of B. M. Longley.

They did not seek to set aside the trust deed given bjr Longley and wife to Fentress for the benefit of Dofflemyre. They admitted the validity of that deed, and claimed in subordination to it. They offered to pay the Dofflemyre claim and have it transferred to them, so that they could enforce it first and their attachment lien afterwards.

Suppose they had done that. They must then have enforced the Dofflemyre claim just as Dofflemyre himself w'ould have done. What was the nature of that claim? B. M. Longley and J. 0. Rogan gave their joint note to Dofflemyre for $1,500 — Rogan being surety. How, if Dofflemyre had brought suit on the note, and these facts had been set up and proven (as they were on the trial below), the plaintiff could not have touched the property of Rogan until he had exhausted that of Longley. But he had the further security of the deed of trust given by Longley and wife — B. M. Longley and his land being primarily bound; then Rogan and the land of Mrs. Longley.

It is clear that if B. M. Longley had not property enough to pay the debt, Dofflemyre could proceed against Rogan and the land of Mrs. Longley;—• against Rogan, because he was surety on the note; and against Mrs. Longley’s land, because she had made it liable by executing the deed of trust. How Dofflemyre was paid by having eight hundred acres conveyed to him out of the tract of which the land in controversy forms a part. The conveyance was made by Rogan and wife.

It is not pretended that the eight hundred acres which Dofflemyre received was more than he ought to have received in payment of his claim. There is no complaint on that score. But the court concludes that, of this eight hundred acres, four hundred acres should be held to have been paid out of the land of' Bogan, and the remaining four hundred out of the lands of Longley and his wife. Why so ? Why should the lands of the sureties be invaded before the land of the principal is exhausted? We do not regard this conclusion of the court as correct. Our opinion is that if B. M. Long-ley’s interest in the land which was subject to sale was as much as eight hundred acres, then the Dofflemyre claim should be held to have been paid with Longley’s land. If he had not that much land, then it should be held that all the land he had subject to sale had passed to Dofflemyre. Let us see, then, what amount of land B. M. Longley had. °

The court finds that J. C. Rogan and wife conveyed to B. M. Longley and wife one thousand and seventy-two acres. Upon this was their homestead of two hundred acres, which was exempt from the liens, both of the deed of trust and of the attachment. That would leave eight hundred and seventy-two acres. This land — less twenty acres — or eight hundred and fifty-two acres, B. M. Longley and appellant Mrs. Longley conveyed by the deed of trust to Fen-tress to secure the Dofflemyre claim. Of this tract B. M. Longley owned one-half, or four hundred and twenty-six acres,— the other half being the separate property of his wife. Thus all the interest which B. M. Longley had in the land, and three hundred and seventy-four acres besides, went to pay the Dofflemyre claim. Whether this last amount belonged to Bogan or Mrs. Longley, or both, it is not worth while to inquire. The plaintiffs have no interest in that question, as they have no claim upon either of those parties.

As the cause was tried without a jury, our opinion is that the judgment should be reversed, and that such judgment should be rendered here as should have been rendered by the court below — that is, judgment against B. M. Longley for the debt, and in favor of appellants so far as the land is concerned.

Beveesed and eendebed.

[Opinion adopted February 3, 1885.]