| Tex. | Jul 1, 1854
The appellee was purchaser of a lot of ground and the improvements thereon, in the town of Brownsville, from Kingsbury and wife. Kingsbury, before his sale to Maxan, had given a mortgage lien on the same property to Turner & Benshaw, to secure the payment of a promissory note he had given to them for fourteen hundred dollars. And the deed from Kingsbury and wife to the appellee, Maxan, makes particular reference to the note due to Turner & Benshaw, and to the mortgage given to secure its payment, and the condition is imposed, that Maxan, the vendee, shall pay that note at its maturity. The note not being paid at its maturity, Turner & Benshaw commenced suit upon it, in the District Court of Cameron county, and prayed for judgment on the note, and for a decree enforcing their lien, secured by the mortgage ; and there was a judgment and decree, according to the prayer of the petition; and the property, after
The appellee applied for and obtained an injunction, enjoining the Sheriff and Mitchell, his Deputy, and Webb, the purchaser, from disturbing him in his possession. In his petition, he sets out much that is wholly irrelevant, and cannot be expected to claim the attention of this Court. He alleges fraud in obtaining the decree, and that he had no notice of the suit for the foreclosure of the mortgage, until he saw the Sheriff’s advertisement for the sale of the property under the decree of the Court in favor of Turner and Eenshaw. He, however, shows in his petition, that he did know of the pendency of the suit; but alleges that he did not suppose, that it would be reached upon the docket, and being a member of the grand jury at that Term, he did not give it his attention, being occupied by his duties as a grand juror. He alleges that after seeing the Sheriff’s advertisement, he immediately made application to the District Judge to enjoin the sale, but that he received no return from the Judge on this his first application for an injunction. The appellants answered the petition, denying all fraud, and alleging that the sale had been conducted according to law, and with perfect fairness. The appellee then filed his petition, that must be regarded and was considered in the Court below, as an amendment, praying to bring the amount secured by the mortgage into Court, and to be permitted to have the same applied, by way of redeeming the property. On the final hearing, the Court set aside the sale, and allowed the petitioner to redeem the property from the mortgage incumbrance. And the defendants in the Court below, appealed, and ask that the decree shall be reversed. The final hearing, as stated in the decree, was upon the petition, amended petition, the answers and the documentary evidence; and the Court rested its decree upon the assumed
It is supposed that the Judge arrived at this conclusion, because Maxan was not made a party to the suit for the foreclosure of the mortgage, and it is admitted, that as a subsequent incumbrancer, he ought to have been made a party, if the fact of his being such subsequent incumbrancer was known to the mortgagee. (Hall, adm’x v. Hall, et al., decided at the present Term, Ante.) There is, however, nothing in the record, to show that the mortgagee, at the time of the commencement of his suit to foreclose his mortgage, knew of this subsequent incumbrance; and there is no evidence that the mortgagor had left the possession of the mortgaged premises ; and the inference is fair, that he was in possession, when the suit was brought. The suit was commenced for the foreclosure of the mortgage 29th August, A. D., 1849. The purchase of the mortgaged premises, by Maxan, from the mortgagor, was on the 28th July, A. D., 1849, only one month before the commencement of the suit to foreclose the mortgage ; and there is an express reservation in the deed from Kingsbury and wife to Maxan, of the possession until the 1st day of September, then next ensuing, and further until an instalment stipulated for was paid, of the purchase money. Had there been proof that the mortgagor had left the premises, and let another in possession, or such fact had been a matter of so much notoriety, that it would be presumed the mortgagee was advised of the fact, it might have been insisted that the new possessor should have been made a party in the suit. If a subsequent incumbrancer is known, and not made a party to the foreclosure, he will not be deprived of any equitable defence, he might have, against the mortgage; and the object of making him a party is, to enable him to make such defence, by showing that the mortgage "was invalid, or had
The purchaser in this case, was estopped from denying the validity of the mortgage, or the amount due at the time of his purchase, because it was made a part of the consideration of his purchase, that he should pay off the debt and cancel the mortgage. He has not alleged that the debt or any part thereof, had been paid or released, subsequent to his purchase. Add to this his acknowledgment that he knew of the pendency of the suit, and of the intended sale, it would seem that he would have had no equitable grounds of relief, even if, in point of practice, he ought to have been made a party; because it does not appear that he had lost any advantage or available defence, that he could have claimed, had he been a party. We believe, therefore, that the Court erred in setting the sale aside, and the decree is therefore reversed, and the cause ordered to be dismissed at the costs of the appellee.
Reversed and dismissed.