Mills v. Traylor , 30 Tex. 7 ( 1867 )

Donley, J.

The appellees were no parties to the suit of appellants to foreclose the mortgage given by Mining to appellants to secure them in the repayment of such moneys as they were compelled to pay as the sureties of Mining, and cannot be bound by that proceeding. It is said, in Hall v. Hall, 11 Tex., 547, “All persons having an interest in the equity of redemption should be made parties to a bill to foreclose. If such incumbrancers, whether prior or subsequent, are not made parties, the decree of foreclosure does not bind them, as also a decree of sale would not. The prior incumbrancers are not bound, because their rights are paramount to those of the foreclosing party. The subsequent incumbrancers are not bound, because their interest would otherwise be concluded, without an opportunity to assert or protect them.”

In the case now under consideration, the lands were sold to the appellees subsequent to the mortgage to appellants; and it may be held, that the appellees took the property subject to that incumbrance. They should, however, not have been precluded or affected by a proceeding had in their absence and without notice.' The appellees were not present on the hearing of the application to foreclose and decreeing the property to be sold; and on the trial of this cause the question is not presented by the pleadings or the facts upon which the decree of the court foreclosing the mortgage was founded.

Duty v. Graham, 12 Tex., 427, was an action of trespass to try title, in which the plaintiff relied on a mortgage from John J. Mining to secure the payment of a sum of money. The defendant claimed by purchase from the heirs of Mining; and it was held, that the mortgagee was not entitled to recover.

The facts of this case are similar to those in the case above cited. If in any case the mortgagee, in an action of trespass to try title, may entitle himself to recover the lands mortgaged before a foreclosure, it must be upon allegation and proof of such facts as would entitle him to a decree foreclosing the equity of redemption, and a refusal or neglect on the part of the purchaser of the property to discharge the mortgage debt after being advised of it. It is not here necessary to decide that question. Judgment was properly rendered, on the evidence in this case, in favor of the defendants as against the plaintiffs.'

The trustee for the intervenor was not to sell the land until the claims of the beneficiary in the trust deed had been presented to the grantor for payment. The debt to secure which the trust deed was given is not stated in the deed; nor does it anywhere appear that Mining, the grantor, was owing anything whatever to Frances, for whose benefit the trust deed was executed, at the time of the sale by the trustee. The deed recites that Mining, the grantor, had been informed by Frances, the beneficiary in the trust deed, that he, as the surety of Mining, had paid an amount of money for Mining, and that, being desirous of paying all his debts, and Frances not knowing the exact amount, the deed of trust was made, and stipulated that Mining should pay such claims as Frances had been compelled to pay as the surety of Mining, provided that said claims should be presented to said Mining for payment. The object of requiring the claims to be presented to Mining was, that he might be informed of the claims which' Frances had paid as his surety, and might have an opportunity of paying to Frances such amounts as he had paid for Mining, and were due to Frances at the time of the sale, and discharging the incumbrance from the land.

It not appearing from the evidence that Vining was owing Frances any amount whatever at the time the land was sold by the trustee, nor that Vining had any notice of any amount alleged to-be owing by him to Frances, or that he had any notice of the sale by the trustee, there could be no authority for the trustee to sell. The existence of the debt, and notice thereof to Vining, was necessary to authorize the trustee to sell the land.

If there were no debts owing by Vining, the trustee had no authority to sell, and his deed could not operate to pass any title to the purchaser. There is no error in the charge of the court of which the intervenor can complain. We have said that to authorize the trustee to sell the land under the trust deed, Vining, in fact, must have been owing a debt to the beneficiary in the deed. Ho debt is stated in the trust deed. The court authorized the intervenor to show by other evidence the existence of said debt, if any such there was. There is no error in the judgment, and it is

Affirmed.