Ballard v. Anderson , 18 Tex. 377 ( 1857 )

Hemphill, Ch. J.

The most important and material facts in this case are, that R. J. Anderson and his wife, the appellees, conveyed in May, 1855, by deed of trust, to Harris, to secure a debt payable to C. Ballard, five hundred and seventy-one acres of land, on which was the homestead of the appellees, and upon which the said Ballard had a vendor’s lien for the purchase money; also, 140 head of cattle and 12 head of horses. Subsequently a judgment was recovered against the husband, R. J. Anderson, by Glass & Theobald for $149 95, was levied upon this property, and at a Sheriff’s sale the same was sold subject to the mortgage, and conveyed to the appellant, R. M. Tevis, for the sum of fifty-one dollars, and the said Tevis conveyed an interest to the co-appellant, J. J. Ballard; and Anderson, the husband and debtor, having himself, as alleged in the petition, paid off the mortgage debt, and there being consequently no incumbrance, the appellants pray that the property for which they bid fifty-one dollars, and which was worth seven or eight thousand dollars, be delivered into their possession; and contemplating, in the amended petition, as a possibility, that they might be compelled to refund the amount paid by Anderson on the mortgage; they pray that the homstead which was not liable to their execution, should be subjected to the discharge of the mortgage debt.

The demurrer to the petition Avas sustained, and the plaintiffs now seek to reverse the judgment. Of the several grounds insisted upon by the appellees in support of the judgment, the first is, that the petition .was defective for the want of parties : that the trustee was a necessary party. This ground we believe well taken. The trustee or creditor should have been a party, where a question was made as to the discharge of the debt. The Court could not be required to act on the supposition that the debt was discharged, unless the creditor or his trustee who had a paramount interest as to the existence of such fact, was a party and bound by the decree.

Another ground is, that there was no averment that the land, horses and cattle, were the separate property of R. J. Anderson or community property, so as to be liable to the execution against Anderson, the husband alone. There is a want of certainty of the averments in this respect; whether so much so as to be fatal, it is not necessary to determine. The wife joined in the mortgage of the whole of this property. This would operate as a presumption that the property was her separate right, and especially all not included in the homestead. In cases of this description, and where a party attempts to set out his title, the averments must be positive. Nothing should be left to argument or inference. It should have been made manifest and conclusive by the averments, that the land was subject to the execution against the husband.

As to the question whether the mortgagor or maker of a deed of trust has such an interest in the property mortgaged as is subject to execution, it is settled in this State, as' a general rule, that the mortgagor has the legal title or such an interest as is subject to execution. But if the mortgage be given to secure the purchase money of land, and be executed simultaneously with the deed of conveyance to the vendee, the legal title remains within the mortgagee or vendor of the land. (Dunlap v. Wright, 11 Tex. R.) Whether this principle might not be extended so as to embrace mortgages given for the purchase money, whether they be executed at the same time or subse. quent to the conveyance of the land, is a subject worthy of much consideration, but is not essential to the decision of this case.

A fatal defect in this petition is, that it is not shown that the property was sold at the Sheriff’s sale in separate parcels. The conclusion from the allegations is, that the land, cattle and horses were sold in one mass to the highest and best bidder, as it is said, for the sum of fifty-one dollars.

There could be no device by which property could be more ruinously sacrificed, than the sale of large masses and distinct parcels of it together, In Tiernan v. Wilson, 6 John. Chan. 412, the Sheriff put up two lots of land, amounting to 466 acres, for sale together, and they were struck off for thirteen dollars ; the Chancellor declared that the sale of the interest in the two lots was an abuse or breach of trust; any ten acres, from either of the lots, would probably have raised a sufficient amount; that to sell so large an amount was calculated to raise distrust as to the title and destroy the value of the sale. There must be a sound discretion exercised by the officer, as to the amount of property he may sell together in a mass ; that in the case before him, the abuse of discretion was too flagrant to be endured, and that the law would adjudge such a sale in such a case fraudulent.

These remarks have a most cogent application to the case in hand, and there can be no hesitation in saying that the law adjudges such a sale in such a case as is before us to be fraudulent and void.

There are other objections, arising out of questions connected with the homestead exemption, but we refrain from their discussion as not required by the cause.

Judgment affirmed.