Sneed v. Joyce Land & Cattle Co. , 1923 Tex. App. LEXIS 505 ( 1923 )

The Joyce Land Cattle Company, alleging itself to be "a corporation, duly incorporated, with its principal office and place of business in Wichita county, Texas," obtained judgment by default for $7,188.99, with decree foreclosing deed of trust executed by appellant on real estate to secure the note sued upon.

Appellant attacks the petition containing the foregoing allegation for failure to show that the plaintiff company was incorporated under the laws of Texas or had a permit to do business in Texas. This point was not presented to or passed upon by the trial court. We think the allegation, in the absence of a denial by affidavit, meets the requirement of article 1822 of the Texas statute, which declares that "it shall be sufficient to allege that such corporation was duly incorporated." Houston Waterworks v. Kennedy, 70 Tex. 233, 8 S.W. 36; Way v. Sumner Bank (Tex.Civ.App.)30 S.W. 497, 14a C.J. 821, § 2934.

We are also of the opinion that it was not necessary to make the trustee in the deed of trust a party to the suit. In this state the trustee in such a mortgage does not take the legal title and is not a necessary party to a suit to foreclose it. Hammond v. Tarver, 89 Tex. 290,32 S.W. 511, 34 S.W. 729; Perryman v. Smith (Tex.Civ.App.) 32 S.W. 349; Cobb v. Bryan (Tex.Civ.App.) 97 S.W. 515.

The judgment of the trial court is affirmed.