C. W. Mervin v. N. Murphy and another, 35 Tex. 787

Walker, J. There is no statement of facts accompanying the record in this case, and we should hold ourselves exonerated from its examination were it not that there is no disagreement between counsel as to the facts governing the case, and the question presented for our determination is purely one of law. On the fifth day of November, 1867, Martha Johnson made and delivered to C. W. Mervin her promissory note for $650, due two months after date.

This note recites that it is given for a portion of the unpaid purchase money of improvements made on lot No. 1, block 209, in the city and county of Galveston, and the note is accompanied with the power to appoint a trustee to sell the property for the payment of the note. The instrument has never been recorded. On the twenty-seventh of December, 1867, Martha Johnson gave a formal mortgage over the same property, described in the same manner, to secure the payment of $671. This instrument was recorded on the day of its execution.

It recites as follows:—“hereby warranting the title to the same, except a primitive lien upon the same, also kept by the said C. W. Mervin, to the amount of $650.” On the twenty-fourth day of February, 1868, Martha Johnson executed and delivered to one Quick a deed of trust for the improvements on lot Mo. 6, in block Mo. 209, in the city of Galveston, to secure a debi to Nicholas Murphy. Mervin brought suit at the May term of the district court for 1868, against Martha Johnson, claiming that both his debts were secured upon the property, and praying for foreclosure.

Murphy was made a party defendant, and by his pleadings claims that the deed of trust made to Quick for his use, though junior in point of time, nevertheless secures to him a prior lien upon the improvements therein described. It appears that the improvements intended to be encumbered were upon lot Mo. 6, and not upon lot Mo. 1.

This is one of the facts found by the jury; and they further find that in the first instrument, dated Movember 5, 1867, the misdescription of the lot was unintentional, but that in the mortgage of the twenty-seventh of December, both Johnson and Mervin knew what they were doing, and intentionally misdescribed the number of the lot; that no fraud was'intended thereby, and that Murphy also knew these facts at the time the deed of trust was executed to Quick.

If the improvements were accurately and perspicuously described, the misdescription of the locus in quo would not vitiate the mortgage as between parties and privies; nor could a stranger take advantage of it if he had knowledge of the facts. The maxim of Lord Bacon, falsa demonstratio non nocet, here applies. The farm A., otherwise accurately described, though referred to as being in possession of B., in the deed, if actually in possession of 0., is not so misdescribed as to render the deed void. The doctrine herein set forth is fully announced by this court in Berry v.

Wright, 14 Texas, 273; and this would give Mervin a good lien under his mortgage of the twenty-seventh of December, 1867. But the question remains to be determined, whether Mervin secured a lien by virtue of the note and power of November 5, 1867, which can claim priority over Murphy’s deed of trust. This question is not free from difficulty, and in our judgment, were we to follow the authority of eminent text writers, we should incline strongly to the opinion that Mervin secured a valid lien under the power to appoint a trustee and sell.

But there can be no doubt that this question is settled in advance by the highest judicial authority of the country, in the case of Hunt v. Rousmaniere, 1 Peters, 1; 8 Wheaton, 201; and 2 Mason, C. C., 342. The-doctrine herein laid down makes a clear distinction between a power coupled with an interest in the thing, and a power coupled with an interest in the proceeds of the thing when sold.

Had Mervin appointed a trustee and sold the property, his right to the proceeds could not have been questioned; but in our judgment equity will not now enforce the execution of the power to the prejudice or exclusion of intervening equities.

We think his honor the district judge, upon the second trial, ruled the law of this somewhat difficult-case correctly; and for the reasons we have given, we affirm the judgment of the district court, giving Mervin a prior security on the property, for the debt secured by his mortgage, and postponing the payment of his first claim to the prior equities of Murphy, secured by the trust deed. Affirmed.