Citation Numbers: 48 Tex. 22
Judges: Roberts
Filed Date: 7/1/1877
Status: Precedential
Modified Date: 9/2/2021
The defendants, W. H. Maloney and M. J. Maloney, executed their joint and several promissory note to plaintiffs, W. P. Freeman & Co. To secure the payment of the said promissory note, the said defendants at the same time executed and delivered a deed in trust, or mortgage, conveying the property mentioned to W. P. Bushing in trust, and authorizing him, as trustee, in case of default in the payment of said promissory note at maturity, at any time thereafter, at the request of plaintiffs, to sell the said tract of land set out and described in plaintiff’s petition, at the court-house door in the town of Emory, Rains county; complying in all respects with the requirements of the law, in selling under execution out of the District Court, and to make the purchaser good and sufficient titles to the said land, and to receive the proceeds of the property thus sold, and to apply the same to the payment of said promissory note and interest thereon accrued. The said promissory note and deed of trust were executed on the 19th day of May, 1873; the promissory note due and payable six months after date, to wit, 19th day of November, 1873.
In the meantime, as alleged in plaintiffs’ petition, the said trustee, W. P. Bushing, departed this life, without having in any wise carried out the object of said trust, by selling the said land and paying the said promissory note.
After the maturity of the said promissory note, on, to wit, the 22d day of June, A. D. 1874, plaintiffs filed their petition in the District Court of Rains county, where the said land was situated, setting out the above facts, and praying the court to appoint a trustee in the place of said W. P. Rushing, trustee, deceased, to carry out the objects of the said deed in trust. To plaintiffs’ petition alleging the death of Bushing, the trustee, and praying the court to appoint a trustee to carry out the trust in place of W. P. Rushing, deceased, defendants pleaded that the tract of land conveyed in trust by W. H. Maloney and M. J. Maloney to W. P. Rushing, trustee, was a part of their homestead at the time they executed the said
There was, then, at the trial, as exhibited by this record, no good ground for asking the court to appoint a trustee, because no issue had then been settled upon which the right of plaintiff" to have a trustee appointed by the court depended.
It is true, the petition alleged grounds for it; but the defendants had filed a general denial, and specially pleaded that the mortgaged property was and is a homestead; and that plea had been sustained as a sufficient answer to the equitable relief asked in the petition for the appointment of a trustee, and the exceptions to it, as an immaterial plea, had been overruled. The petition did not admit, or by its terms or by its exhibits show, that the mortgaged property .was a homestead; The existence of the mortgage and note on the part of the plaintiff", and of the fact of the property being a homestead on the part of the defendants, were facts to he proved by them respectively, in a legal way, in the ordinary course of the trial of the "case, to settle the issues joined.
If the plaintiff, on the trial, produced in evidence no mortgage such as that alleged by him, it was unnecessary for the defendants to prove that they had a homestead, or anything about it, whether their plea of homestead was good or bad, and it would, in that event, be an immaterial issue made by the parties.
If the plaintiff had desired, as he certainly did, to test the sufficiency of the homestead plea, he should have produced in evidence his mortgage; and then, if the defendants failed to prove that the property mortgaged w'as a homestead, plaintiff would have got his full relief; but if the defendants proved the facts of their homestead plea, the plaintiff had still full opportunity of testing the sufficiency of that plea, by excepting to the charge of the court instructing the jury how to find on that plea, or by excepting to any evidence offered by defendants in support of that plea, or by moving for a now trial and an arrest of the judgment on that plea, if it had been specially found against him, and by bringing up a statement of facts and bills of exception, so as to enable this court to revise the action of the District Court in said rulings; or if the court had refused to admit in evidence the mortgage, offered to establish the plaintiff’s allegations, as unnecessary, or for any other cause, the plaintiff might have excepted to the ruling, and thus have raised the question by bill of exceptions.
Suppose that the court had decided against the plea, and sustained the exceptions to it, at the previous term, and that it had so appeared in this record, and plaintiff, on the trial-, caused no issue to be submitted to the jury but the one on the note, and no other issue was found, and there was noth
It is highly probable that it was taken for granted, on the trial, by the parties and by the court, that plaintiff bad a mortgage, as alleged, and that the defendants’ mortgaged property was a homestead, as alleged; and upon that assumption, the court ruled that plaintiff was not entitled to have a trustee appointed, and proceeded to submit the issue to the jury on the note, upon which alone the jury found a verdict, upon which the judgment was rendered in favor of plaintiff, from which he has appealed to this court.
This court cannot so take those facts for granted as established facts in this case, in. the absence of their having been judicially ascertained, and so incorporated in the record as to enable the court to revise them as substantial parts of it. Therefore this court cannot determine that the court below committed any material error in this case by overruling the plaintiff’s exceptions to the defendants’ plea of homestead, at a former term, or in refusing to appoint a trustee at the time of the trial, which alone are the errors assigned by the plaintiff to procure a reversal of his judgment.
Those questions, not being properly presented in the record for revision, will not now be discussed, however readily this court might decide them under the principles settled by the previous decisions of this court.
The real question presented by the record is,—Can this court
There being no error assigned and presented on the record, so as to require a reversal, the judgment is affirmed.
Affirmed.