John James v. W. B. Jacques and others, 26 Tex. 320

Bell, J. We are of opinion that the case made by the pleadings and evidence was not sufficiently presented to the consideration of the jury by the instructions given them; and, also, that the last instruction given to the jury was erroneous. It is not enough to say that Belger is not a party to this suit, and that no one is entitled to complain that notice of the sale under the deed of trust was not given. The stipulation in the trust deed that ten days notice of sale under it should be given, was a stipulation in favor of the makers of the deed, and was intended to secure a fair competition at the sale.

James, by virtue of his purchase at the Sheriffs sale, became the owner of the equity of redemption, and possessed the same rights that the makers of the trust deed retained at the time of its execution. By his purchase, James became the owner of the property, subject to the lien of Vance growing out of the trust deed. It cannot be doubted that if notice of the sale had been given, and James had attended the place of sale, he would have been entitled to redeem the property by paying the debt due to Vance; and the sale could not have proceeded in the face of an offer by James to redeem. We are of opinion that Mrs.

Jacques, by paying the debt to Vance, became substituted to all his rights as creditor under the trust deed, and was entitled to enforce the lien upon the lots for her re-imbursement, but not in such manner as to affect James’ equity of redemption. The true controversy here is between James and Mrs. Sheahan; and we are of opinion that James cannot claim the right to have the respective liens so adjusted as to subject the lots which were community property to the Belger judgment, and the piece of land called the Rincon, which is Mrs.

Sheahan’s separate property, to the lien of the deed of trust, or to the payment of the debt to Vance. Mrs Sheahan is shown to be a surety for her husband in the note to Vance. Her separate property is in no way liable to the judgment in favor of Belger. It is true her separate property is liable to the debt of Vance, but only in connection with community property which ought first to be exhausted. In this state of case, to adjust the liens of Vance and Belger in such way as to make the separate property of Mrs.

Sheahan liable to the whole of the Vance debt, is to deprive her of a right, viz., to have the community property first made subject to that debt; and would be the same thing in the end as to make her separate property liable to the judgment of Belger. All that James can claim is the excess of the value of the lots over the debt to Vance, and this much he can claim, because he has the equity of redemption.

The lots ought to have been sold by the trustee, or by some one properly substituted by him, or by the makers of the trust deed, with his consent, after the notice stipulated for in the deed, so that James might have had an opportunity to redeem. That this may be done, the judgment is reversed and the cause remanded.

If it could be shown that the property was, at the time of the purchase by James, of greater value than the amount of the debt to Vance, and that by reason of the accumulation, of interest on that debt, and the depreciation in value of the property, it was not now of value sufficient to pay the Vance debt, such facts might give rise to equities, or might affect the rights of parties; but we cannot discuss such possibilities at the present time. Reversed and remanded.