Menard v. Sydnor , 29 Tex. 257 ( 1867 )

Coke, J.

There is neither statement of facts nor bill of

exceptions in this case. Giving the judgment the benefit of all the presumptions that can possibly arise in its favor under the pleadings, by intending that all the evidence legally admissible was introduced by the appellee, and that no evidence was offered by the plaintiffs in error, we are of opinion that there is such error apparent upon the record as must operate its reversal.

It appears, very clearly, that Virginia Menard, one of the plaintiffs in error, was, at the date of the execution of the deed of trust, which is the foundation of this suit, and at the time this judgment was rendered, a feme covert, the wife of her co-plaintiff* in error, and this judgment is rendered against her generally, and execution authorized to issue as well against her as against A. B. Menard, her husband, for such amount as may be left unpaid by the sale of the land.

It is not pretended that there is any such allegation of facts in the petition as would make the debt sued for a charge on the separate estate of Mrs. Menard, without which, it is well settled, a general judgment against her cannot be sustained. (Lynch v. Elkes, 21 Tex., 230; Trimble v. Miller, 24 Tex., 215; Haynes v. Stovall, 23 Tex., 625.)

This error, if the only one, could be corrected, and the judgment reformed here, without sending the case back to the district court. But another objection is apparent which is fatal, and for which the judgment must be reversed. It is, that the verdict and judgment are utterly inconsistent with the pleadings and the only proof that was properly admissible under the pleadings. This suit was founded on the deed of trust. Ho note, or other evidence of the debt, is relied on or pretended to have existed. The deed of trust is set out, in hcec verba, in the petition. The only ground on which the verdict could possibly be predicated, under the pleadings, is upon the existence and verity of the deed of trust, as declared on in the petition. All the rights of Sydnor, as shown by the record, arise on and by virtue' of that instrument. He bases his claim against the plaintiffs in error exclusively upon it, and the sole purpose of this action is to enforce its execution. He, as well as they, must therefore be bound by its terms. His rights, as well as their obligations, are defined and limited by it. Ho waiver, concession, or admission on the part of the plaintiffs in error can be presumed, because the judgment recites that they failed to appear, either in person or by attorney; nor is a predicate laid in tbe petition for the introduction of any other evidence than the deed of trust in support of the demand of defendant in error. The deed of trust is evidently intended to secure the money advanced by Sydnor, by giving a lien on the land. By it Sydnor is authorized, at any time within twelve months from its date, to advertise, sell, and convey the land, at such price as may be agreed on between himself and the plaintiff in error, and out of the proceeds to pay himself the money advanced and interest, and pay over the excess. If a sale shall not be made in that way during that period, then Sydnor is authorized to sell the land at auction, after advertising. If the land shall bring more than the debt, the excess to be paid over. If it bring less, or just enough, in either event Sydnor is to retain the whole of the proceeds, and the debt to be considered settled. The evident intention of the plaintiffs in error, by these stipulations, was to protect their land from sacrifice, by retaining the power of fixing the price for which it might be sold during the first twelve months, and providing after this power passed from them, in effect, that Sydnor should guaranty that the proceeds of the sale should at least pay the debt, which, by acceptance of the terms, he clearly did. This undertaking of Sydnor’s is, as much as any other, a part of the contract, and we cannot see why it should not be enforced as fully as to him as the other stipulations should be on the plaintiffs in error. If Sydnor had advertised and sold at auction, in accordance with the authority vested in him by the deed, after the lapse of the first twelve months, clearly by the terms of the deed of trust, if the land brought less than the debt, he would have taken the proceeds in satisfaction and full payment of the debt. He has certainly acquired no additional rights by coming into court to have an execution of the trust.

The defendant in error seeks the enforcement of a contract when it is beneficial, and he must stand to its terms when it is onerous. The defendant in error has a right to recover, according to the terms of the deed of trust which he relies on to establish his demand, and that is his principal debt and interest, if the land will bring it; if it will not bring so much, then he can recover only what it will bring.

As men bind themselves, so must they stand bound. When the terms of a contract are free from ambiguity, and not such as are against the policy of the law to enforce, they establish the rights of the parties in the subject-matter, which will be protected and enforced fry the courts. The terms of . the instrument sued on in this case are clear, the intention obvious. It is such a contract as the parties had a right to make, and as should be enforced equally on all, according to its intent and meaning.

The judgment of the court below ignores the stipulations of the deed of trust, intended for the protection of the interests of the plaintiffs in error, and by construction removes the conditions of the lien on the land, which had been assented to by all parties, and was a part and parcel of the contract, and leaves it unconditional. For this error the judgment must be reversed, and the cause remanded for further proceedings.

Reversed and remanded.