H. A. and M. E. Delespine v. George B. Campbell et al., 52 Tex. 4

Bonner, Associate Justice The first error assigned in this case is, that “ the court erred in holding that J. H. Benson, guardian of the estate of the minor, W. F. Coleman, under whom the defendant Matthews claims title to the land described in the plaintiffs’ pleadings, and in the judgment herein, was an innocent mortgagee of said land without notice of any of the equities existing between the defendant Campbell and the plaintiffs, H. A. and M. E.

Del espine.” It was held in this case on former appeal, and in other cases, that if the owner of one of two promissory notes, secured by a lien upon land, sues to enforce or foreclose the same, without-making the owner of the other note a party, the judgment will not affect the rights of the latter. (Delespine v. Campbell, 45 Tex., 632; Robertson v. Guerin, 50 Tex., 323.) Both the plaintiffs in this action and George B.

Campbell having prosecuted their original suits separately against Wren, and obtained foreclosure of the mortgage upon each of the notes held by them, without regard to their respective equities, were in equal fault, and neither affected by the judgment of the other.

The testimony shows that this mortgage to secure both the notes was duly recorded on the day of its execution; that the judgment in favor of Campbell was rendered October 24,1866, and that in favor of Delespine and wife, though their suit was brought first, was rendered two days afterwards; that this last judgment was, on writ of error, taken to the Supreme Court and reversed as to the indorsor, George B.

Campbell, May 15, 1869; that in the meanwhile, and during the pendency of this writ of error, on July 7,1868, Campbell caused the mortgaged land to he sold under his judgment, at which sale he became the purchaser at $250; that on January 27, 1869, he sold the land to Susan R. Pearson, who, joined by her husband, A. L. Pearson, mortgaged the same on March 1, 1869, to John H. Benson, as guardian of W. P. Coleman, the writ of error still pending in the Supreme Court.

The stay law of ¡November 10, 1866, was not declared unconstitutional until February, 1868, but a few days before this writ of error was perfected. (Jones v. McMahan, 30 Tex., 719.) The failure of Delespine and wife to obtain an order of sale and execution during the time this law was practically in force, should not prejudice their lien. (Hargrove v. DeLisle, 32 Tex., 177; Cravens v.

Wilson, 48 Tex., 324.) Under the facts of this case, we are of opinion that, at the date of Benson’s mortgage, he had constructive notice of the lien of Delespine and wife, by the recitals in the chain of title under which he claimed, by the record of the mortgage from Wren, and by their judgment of foreclosure in the District Court; and that the first error assigned, that the court below held that Benson was an innocent mortgagee without notice, was well taken. (Blankenship v. Douglas, 26 Tex., 225; Robertson v. Guerin, 50 Tex., 817.) 2.

The second error assigned is to the effect that the court erred in holding that Matthews was a purchaser for value under the judgment foreclosing this mortgage to Benson, the former guardian, as no new consideration was paid, but simply the amount of his bid credited upon the judgment in favor of his ward. If the court thus held, as might be inferred from one of the recitals in the judgment, it was error. (Ayres v. Duprey, 27 Tex., 593; Orme v.

Roberts, 33 Tex., 768.) We do not think, however, that this alleged error is fairly sustained by the record, but that the judgment upon this issue was based upon the previous erroneous finding that Benson was a bona-fide purchaser for value without notice, and that this would protect a subsequent purchaser under him. (Basset v. Nosworthy, 2 Lead. Cas. in Eq.,

part I, 50, and numerous authorities; 1 Story’s Eq. Jur., secs. 409, 410, and note.) 3. The third assigned error is, that “the court erred in not rendering judgment against defendant Campbell for §250, amount of proceeds of the sale of said land under his judgment against Wren, referred to in the pleadings.” The only equity claimed by Delespine and wife, as sustained by the record, to entitle them to have their note first satisfied by the proceeds of the mortgaged property, was that the same first became due.

Under the decisions of this court, the mere fact that one of two promissory notes secured bj7 a lien on land and assigned by the payee would first mature, would not, of itself, entitle the assignee to priority, but to equality only, of payment from the proceeds of the security. (Paris Exchange Bank v. Beard, 49 Tex., 363; Robertson v. Guerin, 50 Tex., 317.) 4.

The question urged by counsel for appellee, that as Wren was not shown to be insolvent, appellants have their legal remedy against him, and cannot resort to a foreclosure of the mortgage, does not, we think, apply to a case like the present. [Opinion delivered October 17, 1879.] It has long been the established practice under our blended system of law and equity, that where the plaintiff has a mortgage upon land, he may, in the first instance, as between him and the original mortgagor, or a subsequent purchaser with notice, obtain both a personal judgment against the mortgagor and a decree of foreclosure; and this is the practice indicated by our statute. (Paschal’s Dig., art. 1480; Rev.

Stats., art. 1340.) Judgment reversed and cause remanded. Reversed and remanded.