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(222 S.W.) of a crime, sought the advice of the attorney , verted questions (Hall v. State, 31 Tex. Cr. R. as a means of evading or modifying punish- 565, 21 S. W. 368; Medina v. State, 49 S. W. ment.

380; Wallace v. State, 44 Tex. Cr. R. 304, In Everett's Case, the deceased went to 70 S. W. 756, 100 Am. St. Rep. 855), and the the offices of his attorneys, threatened the evidence excluded might have been of malife of the accused, and asked the advice of terial aid. At all events, it was relevant, bis attorneys as to how to avoid the legal tending to show the state of mind of deceasconsequences of the killing of accused. This ed toward appellant, and, as we understand testimony was excluded upon the grounds the record, was excluded upon what we rethat it embraced a confidential communica- gard as a mistaken theory that the witness tion between attorney and client. The court in whose knowledge it existed was not priv. on appeal overturned this ruling, and made ileged to disclose it because he had received it one of the grounds for reversal.

it in conference between attorney and client. In the instant case there was evidence of We are constrained to the opinion that in previous attempts on the part of deceased to rejecting the evidence an error was committake the life of the appellant, and on nu ted requiring reversal of the judgment. merous occasions, according to the evidence, he had, with her knowledge, threatened to do so. She claimed that it was his practice to carry a pistol, and to leave it in his auto. mobile when he was walking on the streets.

MASTERSON V. GINNERS' MUT. UNDERThe evidence that immediately before he was

WRITERS' ASS'N OF TEXAS. killed he declared that he would get his pis

(No. 2215.) tol and kill the appellant depended upon her eridence alone. From his acts, as described

(Court of Civil Appeals of Texas. Texarkana. by her, in endeavoring to reach the automo May 14, 1920. Rehearing Denied bile, and from the other facts in the case,

May 20, 1920.) the jury were to determine whether from ber standpoint at the time there was rea 1. Mortgages 0497(2)-Foreclosure of senior sonable apprehension of danger. To solve mortgage with no notice of junior mortgage the doubt as to whether the actions of the

bars rights of junior mortgage. deceased amounted to an attack, or a threat

The foreclosure of a lien on land at the ened attack, his declaration made to his at suit of the senior mortgagee who did not have torney, expressing an intention, desire, or notice of the right in the owner of the junior

mortgage in the property bars such right, notmotive to kill the appellant, and seeking an

withstanding the junior mortgagee was not a expression of opinion as to the probable party to the foreclosure suit. consequences, might have been of value to the jury. Upon this subject Mr. Wharton in 2. Bills and notes 350-Transferee after his work on Evidence says:

maturity held to have no greater rights than

transferror. "For the purpose, therefore, in cases of

If pledgee of pledgor's notes payable to doubt in showing that the deceased made the bearer, and deed of trust to secure notes, was attack, and, if so, what motive, bis prior dec- bound by foreclosure of a senior mortgage, larations, uncommunicated to the defendant, subsequent bolder who took notes after maturthat he intended to attack the defendant, areity with notice of nature of transaction between proper evidence." Wharton's Crim. Evidence, pledgor and pledgee and of senior mortgagee's vol. 2, 8 757, p. 1507.

claim to land as foreclosure sale purchaser

was also bound thereby, since such bolder could [6] The case of Wallace v. State, 44 Tex. not assert a right which pledgee could not asCr. R. 301, 70 S. W, 756, 100 Am. St. Rep. sert. 857, was one in which the accused killed her busband. There was no proof of an actual 3. Mortgages 427 (2)—Mortgagee held not demonstration on his part at the time, yet it

chargeable with facts not shown by record

of junior deed of trust and holder thereof not was held that the exclusion of his uncom

necessary party to foreclosure proceedings. municated threats was not warranted; and, Where notes payable to bearer secured by generally speaking, we understand the rule deed of trust were deposited with maker's credto be that, in cases of self-defense upon ap-itor as security for debt, senior mortgagee with parent danger, the prior hostile declara- no actual notice thereof was not chargeable tions of the deceased are to be received. The with constructive notice requiring it to make court properly allowed to come before the such creditor a party to foreclosure proceedjury in the instant case the various difficul- ings, though deed of trust was of record, and ties, quarrels, threats, and encounters; in though by inquiry it could have ascertained

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such facts. other words, allowed to be detailed the course of conduct between the husband and 4. Mortgages Owl-Existence of debt neces. wife who were the parties to this tragedy. sary. It was in the light of this evidence that the The existence of a debt is indispensable to jury was called upon to solve the control existence of a mortgage.

Em For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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secure same.

5. Mortgages On 224-Purchaser of mortgage at maturity" "to sell said security with or apart from debt takes nothing.

without notice, at public or private sale." Where debtor deposited his notes payable Jones having defaulted in the payment of to bearer and secured by deed of trust with the 2 notes which first matured of the 11 he creditor as collateral for payment of his debt, made to appéllee, the latter declared all of purchaser of the notes and trust deed after them due, and on October 15, 1915, in a suit maturity with knowledge of such facts took against Jones alone, recovered judgment for nothing by his purchase, since an assignment of the mortgage alone without the debt is nugatory the amount of the notes, to wit, $12,298.40, and confers no right whatever upon assignee.

and foreclosing the lien of the deed to White

on the land conveyed to him as trustee. JabAppeal from District Court, Smith County; uary 4, 1916, the land was sold by virtue of J. R. Warren, Judge.

process issued on the judgment. Appellee

was the purchaser at the sale, and the sheriff Suit by the Ginners' Mutual Underwriters' by deed dated said January 4, 1916, conveyed Association of Texas against N. T. Masterson the land to him. At the time it commenced and others. From judgment rendered, the said suit and at the time it purchased the named defendant appeals. Affirmed as re- land at its foreclosure sale appellee had no formed.

actual notice or knowledge of the existence This was a suit by appellee against T. N. of the 10 notes made by Jones to bearer or Jones, N. T. Masterson, and J. E. Winfrey of the trust deed made by Jones to Marsh to on facts substantially as follows:

January 25, 1912, said Jones made and de The note for $1,000 dated February 27, livered to appellee 11 promissory notes, each 1913, to the Harris Lumber Company, was of them being for $1,000, interest and attor- renewed by Jones September 21, 1917. No ney's fees, payable to appellee or order, the part of it had been paid December 31, 1918, first of them on or before January 15, 1914, when the lumber company at Dallas agreed and one of the others on or before January with H. Masterson at Houston to sell the note 15 of each of the ten years next fol- to him and to deliver to him with it the 10 lowing said year 1914. Each of the notes notes made by Jones to bearer, together contained a stipulation that a failure to pay with the collateral agreement, deposited with it when it matured should, at the option of it (the lumber company) as collateral security. the holder, operate to mature the other not The papers were accordingly sent through then due. At the time Jones made the notes a Dallas bank to a Houston bank, where they he executed and delivered a deed whereby he were delivered to said H. Masterson Janu. conveyed certain land to Dabney White as ary 2, 1919, he then paying to the Houston trustee to secure the payment of the notes. bank for the lumber company the sum he

February 10, 1913, Jones executed 10 notes, had agreed to pay therefor. On the next bearing that date, each for $1,000, interest day thereafter, to wit, January 3, 1919, H. and attorney's fees, payable to “bearer” on Masterson, by authority of the collateral or before February 10, 1918, and to secure agreement before referred to, sold the collat. the payment of the notes (it was recited in eral notes (that is, the 10 notes made by Jones the instrument) executed a deed, also dated to "bearer") to appellant for $1,000, and insaid February 10, 1913, wherehy he conveyed dorsed the amount as a credit on the printo W. H. Marsh, as trustee, the land he had cipal note (that is, the note for $1,000 made before conveyed to White as trustee. The by Jones to the lumber company). At the deed to Marsh was duly recorded March 4, time H. Masterson paid for the principal 1913. The 10 notes just mentioned did not at note and received it and the collateral notes the time they were made, or ever afterward, he knew that appellee had foreclosed its lien represent an indebtedness of Jones to any one. on and was in possession of the land, clain

February 27, 1913, Jones made and deliv- ing to own it, and also knew that Jones was ered to the Harris Lumber Company a prom- nerer indebted to the lumber company exissory note, bearing that date, for $1,000, in- cept for the amount of the principal note, to ter::st and attorney's fees, payable to the or- wit, $1,000, and 10 per cent. interest thereon der of said lumber company October 1, 1913. from February 27, 1913. Attached to this note was an instrument exe W. H. Marsh, the trustee named in the cuted by Jones, referred to in the record as deed of trust made by Jones February 10, a "collateral agreement,” in which it was re- 1913, died September 29, 1916. January 4, cited that the 10 notes to "bearer,” secured | 1919, appellant, as the owner and holder of by the trust deed to Marsh, had been deposit- the 10 notes made by Jones to bearer, in ed with the lumber company as collateral se- writing appointed J. E. Winfrey to act as curity for said $1,000 note made to it by trustee under the deed, and thereupon Win. Jones. By said instrument Jones authorized | frey, as such trustee, at appellant's request the lumber company "to collect said collat- advertised the land for sale on the first Tueseral when due, crediting the proceeds thereof day in February, 1919. This suit was comon the foregoing note,” and in case of de- menced January 30, 1919. By it appellee fault "in the payment of the foregoing note sought: (1) To enjoin a sale of the land by

(222 S.W.) rirtue of the trust deed to Marsh; (2) to can-, in cross-assignments, attacks as erroneous, cel said trust deed and the notes it was made because without the support of testimony, it to secure, on the ground that same were a says, the finding that it was chargeable with cloud on its title to the land; (3) if the court notice of the rights of the owner of indebtedthought that should not be done, and that ap- ness secured by the trust deed to Marsh at pellant had a lien on the land to secure the the time commenced its foreclosure suit payment of the principal note made by Jones against Jones and at the time it purchased to the lumber company, to be permitted to the land under the judgment in its favor in ray the amount thereof to appellant, and said suit, and on the ground that it did not so bar the lien; (4) or, if the court thought have and was not chargeable with such nothat appellant had a lien on the land to se tice, and on the ground that "there were no cure the payment of the 10 notes made by pleadings nor facts" authorizing it, attacks Jones to bearer, to have its (appellee's) lien the judgment as erroneous in so far as it thereon to secure the payment of Jones' notes awarded appellant a foreclosure of the trust to it foreclosed and declared to be a prior deed on said land for any amount. lien on the land; that the land be sold, and In the view we take of the case, a de that the proceeds be applied to the payment termination of the contentions presented by of Jones' indebtedness to it and the amount the cross-assignments referred to will disit had expended for taxes and improvements pose of the appeal. on the land, before any part of same was (1) It seems to be the law that the forepaid to appellant. Appellant in his plead- closure of a lien on land at the suit of the ings tendered to appellee the amount of the senior mortgagee who did not have notice 11 notes Jones made to it, and sought, if of the right in the owner of the junior mortthe tender was declined, a recovery against gage in the property bars such right, notJones of the amount of the 10 $1,000 notes withstanding the junior mortgagee was not a he made to "bearer” and a foreclosure of the party to the foreclosure suit. 2 Jones on trust deed to Marsh made to secure them. Mortgages, $ 1425 ; Rogers v. Houston, 94 Tex.

The appeal is by appellant, N. T. Masterson, 403, 60 S. W. 869; Reel v. Wilson, 64 Iowa, alone from a judgment in his favor against 13, 19 N. W. 814; Henderson v. Grammar, 66 Jones for $1,792.84, the amount of the note Cal. 332, 5 Pac. 488.. for $1,000 made by Jones to the lumber com

[2] It appears from the record that appelpany February 27, 1913, and foreclosing the lee, as a matter of fact, did not know of the lien of the trust deed to Marsh on the land existence of the deed of trust to Marsh at in question, directing a sale thereof by the the time it commenced its foreclosure suit sheriff, and directing that the proceeds of against Jones, not, indeed, until June 7, 1917, such sale be applied: First, to the payment which was long after the time when the of the judgment recovered by appellee against land was conveyed to it as the purchaser at Jones October 15, 1915; second, to the pay the sale thereof made by the sheriff as diment of said $1,792.84 adjudged in favor of rected by the judgment in said foreclosure appellant against Jones; third, to the pay- suit. Therefore, unless the record of said ment of the costs of this suit; and, fourth, trust deed of March 3, 1913, operated to the balance remaining, if any, to be paid to charge appellee with notice that the lumber appellee. But it was provided in the judg. company had acquired a right in the land, ment that the sale of the land ordered should appellee was not bound to make that comnot be made if appellee should pay to ap- pany a party to its foreclosure suit in orpellant the $1,792.84 and interest adjudged der to bar such right. If the lumber comin his favor. The judgment canceled the 1v pany was bound by that judgment, of course notes made by Jones to bearer and the trust appellant was; for he, as well as his assigndeed he made to Marsh, "except," it was re or, H. Masterson, acquired the collateral notes rited, “as herein provided,” and perpetuated and trust deed long after said notes matured a temporary injunction granted to restrain and with full notice of the nature of the the sale of the land by virtue of said trust transaction between Jones and the lumber deed to Marsh.

company and of appellee's claim to the land Simpson, Lasseter & Gentry, of Tyler, for as the purchaser thereof at the sale under

the judgment in its foreclosure suit. Thereappellant.

fore appellant was not in a more favorable Marsh & Mcllwane, of Tyler, for appellee. position than the lumber company was in,

and as the holder of the collateral notes WILLSON, C. J. (after stating the facts as could not assert a right it could not have above). Appellant attacks the judgment as asserted. erroneous because it is not in his favor for Finding, in accordance with the statement the amount of the 10 notes for $1,000 each de hereinbefore inade, that appellee had no acposited with the Harris Lumber Company as tual notice of the existence of the collateral collateral security, and for a foreclosure of notes and trust deed to Marsh until June 7, the trust deed to Marsh, instead of for the 1917, the trial court further found that the amount of the principal note for $1,000 made record of the deed operated to charge appelby Jones to said lumber company. Appellee, lee with constructive notice

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"that Jones had executed his 10 promissory | the purpose of ascertaining what property was notes of $1,000 each payable to bearer, and actually the subject of the instrument." to secure said notes he had executed a deed of trust upon the land, naming W. B. Marsh, of And in discussing the question further the Tyler, Tex., trustee in the mortgage."

Chief Justice added:

"With the qualification announced in Carter Unquestionably, we think, the record was notice of that much, and we do not under in this state and in others, that the record of

v. Hawkins, the rule is established, at least stand appellee to be in the attitude of con- instruments provided or permitted by law to tending to the contrary; but the court fur-be. recorded operates as notice only of the ther found, and appellee attacks the finding facts actually exhibited by the record, and not as without support in law, that the effect of those which might have been ascertained by the record and recitals referred to was to such inquiries as an examination of the record put appellee on inquiry and to charge it with might have induced a prudent man to make" notice of the existence of such other relevant citing numerous authorities, to which may be facts as inquiry pursued with proper dili- added Adams v. Lumber Co., 162 S. W. 974. gence would have disclosed.

The reason for the distinction between the "From these facts," said the court, “that is, effect of constructive and actual notice apthe execution of the notes and deed of trust, pears in the statement of the Supreme Court and causing same to be recorded in the rece of Minnesota in Bailey v. Galpin, 40 Minn. ord provided by law for record of such in- 319, 41 N. W. 1054, as follows: struments, it would be presumed that the notes had in some way gone into the chan- "Constructive notice of the contents of a nels of trade, and a lien had become fixed. To deed arises as an inference or presumption of hold otherwise would be to assume that the law from the mere fact of record, and is in entire proceedings were for po purpose and not law equivalent to actual notice of what apintended for what they speak. With this in-pears upon the face of the record to the party formation given by the record, a reasonable bound to search for it, whether he has seen inquiry of either Jones, the maker of the notes, or known of it or not; that is, constructive or of Marsh, the trustee, would have disclosed notice under the recording acts may bind the the fact that the notes were held by the Harris title, but does not bind the conscience; while Lumber Company."

actual notice binds the conscience of the party."

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[3] As supporting his view of the law, the If, as seems to be true by force of the rule court cited Wilkerson v. Ward, 137 S. W. 159. in question, appellee was chargeable with noIn that case Ward claimed under a deed tice only of facts recited in the trust deed to from Miles made in 1888, and duly recorded, Marsh, and not with notice of the existence in which the


described of facts which inquiry suggested by recitals block 49, containing lots numbered 1 to 20, in the deed if diligently pursued would have inclusive, in the Jonathan Miles First addition disclosed, we see no way of escape from to San Angelo, and Wilkerson claimed under the conclusion that it was not bound to make a deed from Miles made in 1905, in which the Harris Lumber. Company a party to its the land was described with reference to foreclosure suit in order to bar its right to streets in said addition. The court of civil enforce the lien it claimed on the land; for appeals held Wilkerson to be chargeable with appellee did not otherwise know and it was notice that the land Miles sold him was the not informed by anything in the trust deed same land he had conveyed to Ward. If the who was the owner of the debt it was made case is not within a qualification of the gener

to secure.

Appellee could not have made al rule announced in Carter v. Hawkins, 62 the owner of the debt a party to its suit with. Tex, 393, it is opposed to the doctrine recog- out first identifying him, and he could have nized in this state by the Supreme Court. done that only by making inquiry he was The general rule and the qualification was not bound to make. stated by Chief Justice Phillips in Wiseman The operation of the rule cannot be regardv. Waters (Sup.) 174 S. W. 816, as follows: ed as unfair or inequitable in this case,

“The general rule that under the doctrine of in view of the fact that the notice appellee constructive notice there is imputed to the had of the lumber company's claim on the subsequent purchaser or incumbrancer notice land was presumptive only, and not actual only of that which appears on the face of the so as to be "binding on its conscience," and recorded instrument, and that where there is in view of the fact that the lumber company, substantial discrepancy between the property by taking from Jones and placing of record intended to be conveyed or mortgaged and that proper evidence of its claim, could have chargdescribed in the instrument, the record will ed appellee with notice thereof and comnot operate as notice, is subject to the qual-pelled it, in order to bar its rights, to make it ification that where the description in the instrument is ambiguous, inconsistent in its parts, Rogers v. Houston, 94 Tex. 403, 60 S. W. 869;

a party to any foreclosure suit it brought. or correct in one particular and false in another, the record is such as to naturally excite Gamble v. Martin, 151 S. W. 327. inquiry, and under such circumstances it there- [4] If, however, the conclusion reached by fore becomes the duty of the subsequent pur- us that the right of the holder of the note for

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(222 S.W.) to look to the land as security for the pay-s to the lumber company, that the court below ment thereof was cut off by the judgment in rendered the judgment he did in appellant's appellee's foreclosure suit was shown to be favor. But appellant in his pleadings did not erroneous, the conviction we have as to the seek a recovery as the owner of the note, disposition which should be made of the ap- or of an interest therein, made by Jones to peal would remain unchanged; for we think the lumber company. The recovery he sought the contention of appellee that the judgment was on account of and as the owner of the was not warranted by the pleadings and the 10 $1,000 notes made by Jones to bearer. eridence in other particulars so far as it was | And the testimony was that H. Masterson in appellant's favor for a foreclosure of the intended to sell and appellant intended to lien he claimed on the land also should be buy those notes, and not the note nor an insustained. It is clear that the only effect terest in it made to the lumber company; in as between Jones and the lumber company other words, it appeared from both the pleadof the delivery by the former to the latter ings and the testimony that the thing H. Mas. of the 10 $1,000 notes and the deed of trust terson intended to sell and appellant intended to Marsh was to create a lien on the land to to buy was what we have held operated as secure the note for $1,000 made by Jones to between Jones and the lumber company and the lumber company. As between those par-Jones and H. Masterson as a mortgage only. ties the transaction could not have had any And we do not think the 10 notes to bearer other effect; for the 10 notes did not repre- and the trust deed to Marsh operated difsent indebtedness of Jones to the lumber com- ferently in favor of appellant, for he purpany or to any one else. Jones owed the lum- chased same after the notes matured and ber company only the amount of the note for with knowledge of the facts shown by the $1,000 he made to it February 27, 1913, and, collateral agreement under which the lumber so far as the record shows to the contrary, company, and after it H. Masterson, held owed no other debts except the one to appel- same. He purchased paper he was bound lee. Therefore, unless the transaction by to know was only a mortgage, and, for anywhich Jones passed the 10 notes and the trust thing appearing to the contrary in the record deed to Marsh to the lumber company oper- before us, took nothing by his purchase; for ated as stated, it did not operate at all as the rule is thatbetween said parties, but was a nullity; for

"An assignment of the mortgage alone, withthere was no other debt to be secured by it, out the debt, is nugatory and confers no right and the existence of a debt (or other obliga- whatever upon the assignee.” 27 Cyc. 1286, tion, and there was no pretense in this case and authorities there cited. that there was any other obligation) is indispensable to the existence of a mortgage. Car

The judgment, so far as it awards appelroll v. Tomlinson, 192 III, 398, 61 N. E. 484, lant a foreclosure of the trust deed to Marsh 85 Am. St. Rep. 344; Richards Trust Co. v. and directs a sale of the land therein describRhomberg, 19 S. D. 595, 104 N. W. 268; 19. ed, will be so reformed as to deny him such R. C. L. 294, and authorities there cited. In relief, and, as so reformed, will be affirmed. the work last referred to it is said:

"Since a conveyance cannot be a mortgage
unless given to secure the performance of an
obligation, the existence of an obligation to be
secured is an essential element without which STRINGER et al. v. JOHNSON. (No. 568.)
the mortgage instrument is but a shadow with- |(Court of Civil Appeals of Texas. Beaumont.
out substance."

May 12, 1920. Rehearing Denied

May 19, 1920.) [5] If such was the effect of the notes and trust deed as between Jones and the lumber 1. Adverse possession am 101-Actual posses. company, such was the effect thereof as be

sion insufficient to give title to contiguous tween Jones and H. Masterson; for, taking

tract subsequently purchased. the papers as he did after the maturity there

Where a person who has acquired title by of with full knowledge of all the facts re adverse possession to a certain portion of a lating thereto, said H. Masterson, as the hold- the continued actual possession of the land to

league purchases a tract contiguous thereto, er thereof, had the rights, and only the which he had acquired adverse possession withrights, the lumber company had while it held out enlargement or extension so as to reach same; in other words, H. Masterson could the land purchased would not give him title by look to the land described in the trust deed adverse possession to land purchased; his posas security (not for the amount of the 10 session of other tract not being extended there. $1,000 notes to bearer, but) only for the to by construction. amount of the $1,000 note to the lumber com-2. Adverse possession w115(4) Inclosure pany. It was on that theory, it seems, and by fence and use for pasture for required the theory that N. T. Masterson by his pur period held for jury. chase of the 10 $1,000 notes made by Jones In trespass to try title, whether plaintiff's to bearer became the owner of Jones' debtl predecessor, who plaintiff claimed to have ac

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