Cardwell v. Masterson

GILL, Associate Justice.

This suit wa's brought by appellants, Mamie and Estelle Cardwell, in the District Court of Wharton County, against J. R. Masterson, Jr., who then resided in Wharton County, and G. H. and W. E. Mensing, composing the firm of Mensing Bros. & Co., residents of Galveston County.

The suit as against Masterson was for the purpose of recovering $1200 (less certain credits) as rent of the Cardwell plantation in Wharton County for the year 1897, and to foreclose the landlord’s lien upon the crops raised thereon during that year by Masterson, who was the lessee.

The members of the firm of Mensing Bros. & Co. were made parties defendant under an allegation that they were holders of a mortgage from Masterson on 150 bales of cotton to be raised on the Cardwell plantation during the year named; that the mortgage lien was junior to and subject to the landlord’s lien sought to be foreclosed; that 41 bales of cotton had been delivered to them by Masterson at Galveston, Texas; that they had refused to point out the 41 bales of cotton to plaintiffs and had converted it to their own use. Judgment for the value of the 41 bales was sought as against them.

Masterson did not answer but made default. Mensing Bros. & Co. interposed a plea of personal privilege setting up their right to be sued in Galveston County, alleging that they were improperly joined as defendants in the suit against Masterson; that the action against them was one of tort, whereas the suit against Masterson was for breach of contract, and that the petition presented a misjoinder of causes of action.

The same questions were made by exceptions to the petition, the latter disclosing the residence of the parties and their relation to plaintiffs’ claim and the property against which the lien was asserted. The court sustained the plea of privilege and dismissed the suit as against Mensing Bros: & Co., but rendered judgment against Masterson for the debt and foreclosed the landlord’s lien upon all the crops raised upon the plantation for the year 1897.

From the judgment of dismissal plaintiffs have appealed.

By the petition it was alleged in substance that the Cardwell plantation was leased to Masterson for the year 1897 and that he entered thereon and raised crops. That by reason of the lease plaintiffs had a landlord’s lien on all the crops so raised for the payment of the rent. That in February of that year Masterson executed and delivered to Mensing Bros. & Co. a mortgage on 150 bales of the cotton to be raised on the premises for that year. That at various times in the fall of 1897 Masterson shipped to Mensing Bros. & Co. at Galveston certain bales of cotton covered by the landlord’s lien, the number shipped aggregating 41 bales. That Mensing Bros. & Co. had refused the demand of plaintiffs to point out the 41 bales so received by them and had converted them to their own use. The value was alleged and judgment prayed therefor. The action of the court in dismissing the cause as to the Mensings is assigned" as error.

Appellees contend that the action of the court is correct: (1) Because the suit as against them is one of tort, whereas the suit against Masterson is on contract, and the two can not be joined. (2) The petition fairly construed alleges that Masterson in shipping the cotton to the Mensings parted with all interest therein and the joint suit can not be maintained unless he retained some interest in the cotton shipped, so that he would have an interest in the application of the amount which might be recovered against the Mensings. (3) Because the allegation that the Mensings were junior lienholders under the alleged mortgage is insufficient to hold them, because it is not alleged the mortgage was duly delivered and placed of record.

The right of appellants to join the appellees in the suit against Masterson depends upon whether the appellees were in any event proper or necessary parties to that suit, for it is conceded that they did not reside in Wharton County, and no other fact exists which would authorize the: suit against them in a court other than that of their residence.

One having a cause of action against several defendants residing in different counties may bring his suit in the county where any one of them resides. Rev. Stats., art. 1194, subdiv. 4. It has been held that in such case the defendant in whose county the suit is brought must be not only a proper but a necessary party to the suit. Chaison v. Beauchamp, 33 S. W. Rep., 303.

In Railway v. Mangum, 68 Texas, 342, it is held that the defendant residing in the county in which the suit is brought must be either a necessary or a proper party defendant, but in the case last cited the' court was not called on to make the distinction. However this may be, it can not be doubted that in the case before us Masterson was the principal defendant and a party absolutely necessary to the suit for debt and foreclosure. If then the Mensings were either necessary or proper parties to the original suit, the trial court erred in. dismissing the case.

That junior lienholders and those claiming an interest in the property covered by the lien may be joined in the foreclosure suit is well settled and is not questioned by the appellees.

The appellants alleged that the Mensings were junior mortgagees. So upon this ground alone they should have been held in the suit. But appellees contend that the appellants did not allege that they had a valid mortgage. This contention is based upon the absence of allegations that the mortgage was delivered and registered. We are of opinion this contention is unsound. It was not necessary that appellants should allege that appellees were claiming under a valid mortgage: It was enough to aver that they were asserting a mortgage lien which appellants wished to preclude or adjust by the judgment.

But if the allegations as to the mortgage should be held insufficient, they were nevertheless properly joined as defendants in the suit on the allegation of possession and conversion of a part of the property covered by the lien. The fact that the cause of action against Masterson was for breach of contract and that against appellees sounded in tort does not render this holding unsound.

Had the conversion been subversive of the rights of both the appellants and Masterson the suit as against appellees would have been none the less one of tort, and yet it is well settled that in such case the appellees could have been properly joined. Cobb v. Barber, 92 Texas, 309.

It is reasoned that the mortgagor has an interest in the property converted which would authorize an action in his own .behalf. That he is also interested in seeing that the proceeds are applied to the extinguishment of the debt, and the fact that the party charged with conversion would have the right, if separately sued by the mortgagee, to have the mortgagor made a party in order that he may be protected against a double recovery, is also given controlling weight.

While in Cobb v. Barber, supra, a doubt is expressed as to whether the party charged with conversion could be properly joined in a case where the mortgagor is alleged to have parted with his entire interest, the question is not decided, and it seems to us that the reasons controlling in the one case apply with equal force in the other.

In the case before us the appellees had an interest in the result-of the controversy between appellants and Masterson. • If the debt for the payment of which the lien existed had been discharged or reduced the fact was useful to their protection. If the crops not affected by the conversion were sufficient to discharge the lien the question could be best adjudicated with all parties before the court, thus avoiding a multiplicity of suits.

As said by Chief Justice James in Parlin & Orendorff v. Miller, 60 Southwestern Reporter, 881: “But properly considered, appellants’ liability is not distinct from the debt, but depends upon and grows out of it. It is only by reason of the debt that the mortgagee can pursue the purchaser of mortgaged property. Such a purchaser with notice who destroys-the subject of the mortgage becomes liable to the mortgagee for the value of the property to the extent of the debt. Looking to the substance instead of the form the consequence of such an act.is to make him liable for the debt pro tanto.”

To join such parties in foreclosure suits seems to have been the uniform practice, and while the exact question does not seem to have been decided, we think the cases above cited and those cited below fairly indicate the trend of judicial opinion. Tenpleman v. Gresham, 61 Texas, 50; Taylor v. Felder, 23 S. W. Rep., 480; Zapp v. Johnson, 87 Texas, 641.

Appellees have cited no case in point, and we are of opinion that those cited holding that suits sounding in contract can not be joined with those sounding in tort ought not to control in determining the question before us. The rule is not absolute and is subject to many exceptions.

Thus a suit upon contract may be joined with a suit for damages growing out of a tort when the tort grew out of the breach of the contract.

The right of appellants to maintain the suit for conversion in Wharton County depending- on whether appellees were proper parties to the foreclosure proceeding, and we being of opinion that they were, it follows that the judgment of dismissal must be reversed and the cause remanded and it is so ordered.

Reversed and remanded.