Tinsley v. Boykin

| Tex. | Jul 1, 1877

Roberts, Chief Justice.

The judgment rendered is not authorized by the verdict. It is well settled, that when a mortgage is given to secure two or more notes, payable at different times, it may be foreclosed when there is a default in the payment of the note first due; and, in doing so, it is proper that the land mortgaged should, in accordance with the provision of our statute, be sold. The existence of the notes not then due should be averred, and their validity as a lien on the land established, in the suit for foreclosure, as was done in this case in the plaintiff’s petition, in the proof on the trial, and in the verdict of the jury. Upon such verdict, a judgment and decree should be so rendered as to enable the court to keep the control of the case until the notes entitled to a lien should be provided for and satisfied, in a manner least prejudicial to all of the parties concerned. Where there could not be a division’of the property, so as to sell it in separate parcels as the notes became due, then the entire, interest in the mortgaged premises might be decreed to be sold, with a rebate of the interest on the notes not then due, or a decree might be made, disposing of the entire interest, partly for cash, to satisfy the note that was then due, and partly on a credit, to be paid as the other notes became due, the court holding the case open in the meantime until all of the notes were paid by the purchaser, and reserving from him a full title to the land until that was done, and until any surplus that might be left upon his bid was paid to the mortgagor.

Without prescribing in advance what decree should be rendered in any case, it may be safely laid down, that, 1st, upon the default of the payment of the first note, a suit may be maintained for the foreclosure of the mortgage, by the sale of the entire mortgaged premises, if the land is not properly susceptible of division; 2d, the decree should be so rendered as to make equitable provision for the payment of all of the notes embraced in the mortgage lien; and 3d, the decree should be so shaped, if the matter was not at once concluded by a rebatement of the interest on the notes not due, as that the court should have control of the case and the title of the land until the notes secured by the mortgage lien should be satisfied. (Salmon v. Clagett, 3 Bland’s Ch. R., (Md.,) 125; Campbell v. Macomb, 4 Johns. Ch. R., 534; Brinckerhoff v. Thallhimer, 2 Johns. Ch. R., 486; Pepper v. Dunlap, 16 La. R., 163; Mussina v. Bartlett, 8 Port., (Ala.,) R., 277.)

The decree in this case required the land to be sold, partly for cash and partly on a credit, and that the purchaser should give notes to the sheriff, for the benefit of the person entitled to the one not due, with a lien upon the land, to secure the same when due, and to the defendant, the mortgagor, for any surplus of the bid. By this decree, if the purchaser should fail to pay the notes, another suit or suits would have to be brought by the parties entitled to the money, and their rights would be complicated with further litigation.

Another objection to the judgment is, that it is uncertain as to the land adjudged to be sold, described therein as follows : “ The dwelling-house in which the said defendant, J. M. Tinsley, now resides, together with forty acres of the land on which the same is situated, said forty acres to be taken out of said defendant’s said tract of land, in as near a square shape as the same may be done.”

The petition should have stated such facts, in relation to the house on the tract, and the locality and shape of the tract, as would have enabled the court to have determined, upon such issues pertaining thereto as might have been made by the parties, the locality of the land decreed to be sold in connection with the house. This is especially important in this sort of a case, on account of the statute, applicable to a mechanic’s lien upon a homestead, which requires the sheriff, ten days after selling it, to put the purchaser in possession of it. (Paschal’s Dig., art. 7115.) The discretion of fixing the boundaries of the tract, of which the sheriff puts the purchaser in possession, should not be left to the sheriff', being a ministerial officer; and much less should it be left to the owner of the balance of the tract, and the purchaser, to settle the boundary fines, who would be almost certain not to settle it until another suit had been brought, and carried through the courts for that purpose. (Walker v. Hallett, 1 Ala., 391.)

The appellant contends that his offset should have been allowed. Upon what ground, does not well appear in the record; for he does not show any title to the claim that he sets up, even if it was not released, as contended for by the appellee. The jury did not notice it in theft verdict, and we cannot say that they erred in that.

The plaintiff’s right to a mechanic’s lien upon the homestead, is the most important question in the case. It does not seem to have been contested in the court below. The evidence tending to establish it, was permitted to go before the jury without objection. As, however, it goes to the foundation of the action, so far as the lien is concerned, it is deemed proper to call attention to the fact, that the evidence of it is not presented in a way to conform to either of the modes of fixing a lien, as prescribed by our statute. (Paschal’s Dig., arts. 7112, 7115.)

The statute prescribes, that a contract for building a house, furnishing materials, &c., when in writing, shall be recorded, and when made verbally, an account shall be made out, specifying the items thereof, according to the agreement, under oath, a copy thereof served on the party “ owing the debt,” and, in both eases, recorded within six months from the time that the debt becomes due, accompanied by a “ description of the lands, lots, houses, and improvements against which the lien is claimed.”

In this case, after the work was done, and materials furnished in building the house, under a verbal agreement, two notes were executed for the amount due therefor, in which the consideration is expressed to be for the materials furnished and the work done in building the house, the locality of which is defined by a very general designation. The question may well be asked, Is this a contract for the building of a house, and the furnishing the materials therefor, or is it an account, with a specification of the items, under a verbal contract ? It is at most an acknowledgment, in writing, that there had been a house built and materials furnished, for which the plaintiff was entitled to receive the amount of the two notes given by the defendant. If it is regarded as a claim under a verbal contract, it was not shown that a copy of it was served upon the defendant, as required by the statute. In this connection, it may be remarked, that this is a statutory mode of fixing a lien upon a homestead, which may cause it to be sold, contrary to the ordinary rule, without the consent of the wife, given by an acknowledgment in due form, and therefore the provisions made to effectuate that object should be complied with substantially in every respect.

This view is taken here as the intimation of an opinion, rather than an authoritative decision, because the question seems not to have been raised in the District Court, and is not actually necessary to be determined now in this case, as it is now presented in the record.,

Reversed and remanded.