R. G. Phillips et al. v. J. B. Watkins Land Mortgage Company et al., 90 Tex. 195

LIGHTFOOT, Chief Justice. Appellant’s first assignment of error is as follows: “The court erred in its order consolidating with this cause No. 3522, styled A. J. Loyd, administrator, v. Henry Dickenson et al., and in overruling plaintiff’s objection thereto. 1st. Because no two of these suits were brought by the same plaintiff against the same defendants. 2d. Because no two of these suits were brought by the same plaintiff against several defendants. 3d. Because the two suits are for distinct and separate purposes, and cannot be joined. The plaintiff’s cause of action is foreclosure against B. G.

Phillips, and the cause of action in. No. 3522 is to remove cloud from title.” . The suit of the administrator to remove the clouds from the title to the property by reason of the mortgage was not improperly consolidated with the suit of appellant to foreclose the mortgage.

It is true that appellant sought to foreclose its mortgage against Phillips and the heirs of Blasingame, but, at the same time, the land had been inventoried by the administrator as assets of the Blasingame estate, and if it was, in fact, the property of the estate, the mortgage of appellant could not be foreclosed against it in an independent suit in the District Court, but the County Court would have jurisdiction of the master. If, on the contrary, the estate did not own the property, but it was owned by E. G.

Phillips, then appellant could foreclose its mortgage upon it, and the administrator would fail in his suit to remove cloud from the title. 2. In the second and third assignments of error, appellant complains that the court allowed the certiorari proceeding, instituted by the First National Bank of Waxahachie against Henry Dickenson, by which it was sought to reclassify the claims of appellant against the estate of Blasingame, to be consolidated with this suit to foreclose his mortgage, and also allowed said bank to intervene in said cause.

The bank, as a fourth class creditor of the Blasingame estate, had a right to contest the classification of appellant’s claim in the County Court, and to revise such classification by certiorari, if improperly made. But the suit of appellant, by which it sought to foreclose its mortgage against R. G. Phillips, is a wholly different proceeding, with which the bank has no concern.

If the land in controversy should, upon a fair trial on the merits, be found to be the property of the estate of Blasingame at the time of the death of said decedent, then appellant, as well as the bank and all other creditors of that estate, must proceed in the County Court to probate their debts in due order, and all claims against such estate must be paid off out of its assets in the order in which they are classified. But, if it should be found that the title was in R. G.

Phillips at the time of Blasingame’s death, the Mortgage Company could foreclose its mortgage against him and would not be compelled to seek a foreclosure in the .County Court. The debt being against the estate of Blasingame, the company had a right to present its claim in the County Court for probate against the estate in order to get its pro rata of payment out of the general assets of such estate, if any, and, its claim being established, it could also pursue its lien against Phillips in another forum, and foreclose its mortgage against him if the title to the land should be in him.

The bank has no concern with the claim of appellant, except in so far as it attempts to reach asséts of the estate of Blasingame. Nothing of the kind is sought in this case. On the contrary, if the land is found to belong to the estate of Blasingame, appellant fails in its suit. The second and third assignments of error, in so far as they affect the bank, or others seeking to re-classify the claim of appellant, are well taken. 3. The fourth and fifth assignments will be considered together. They complain at the refusal of the court to render judgment in favor of appellant foreclosing its mortgage as prayed for.

If the conclusions of fact found by the court below are correct (and they are not controverted), the second mortgage on the land was foreclosed during the lifetime of Blasingame, and his equity of redemption extinguished; the land was bought by R. G. Phillips, who paid the purchase money and the trustee executed to him a deed. We must presume from the findings of the court that the sale was regularly and legally made, and that title to the property became vested in Phillips, subject to the first mortgage.

The title being so vested at the time of Blasingame’s death, appellant cannot be forced into the Probate Court to foreclose its mortgage against that estate, but, having gone there and established its debt, it can foreclose its mortgage in the District Court against R. G. Phillips. It is contended by appellees that Phillips having filed a disclaimer, it operates as an abandonment of the title, and that the administrator of Blasingame being in possession, the title becomes vested in the estate. The rights of third parties cannot be divested by such abandonment.

It is true, that appellant having proved up its claim against the estate of Blasingame more than twelve months after the letters of administration were granted, such claim would be properly classed as a fifth class claim, and cannot be satisfied out of any assets of that estate until after all claims of the first, second, third and fourth class are satisfied. Rev. Stats, art. 2015; Buchanan v. Wagnon, 62 Texas, 375; Jenkins v. Cain, 72 Texas, 91.

But the probate of such claim against the estate does not prevent appellant from enforcing its mortgage lien against the lands, if the equity of redemption had passed out of Blasingame before his death .and became vested in Phillips. Can the rights of appellant to foreclose its mortgage against the property in the hands of Phillips be taken away by his disclaimer or abandonment of the title? In the leading case, in this State, upon the subject of abandonment, it was said by Judge Wheeler: “Legal rights, when once vested, must be divested according to law, but equitable rights may be abandoned. Picket v.

Dowdall, 2 Wash (Va.) 106. Yet, if a person having the disposing power absolutely, does

an act, sufficient in itself legally to divest his title, with the express intention of relinquishing and .abandoning the property, it is not easy to perceive why he may not do so. Abandonment is the relinquishment of a right—the giving up of something to which one is entitled. If the owner sees proper to abandon his property, and evidences his intention by

an act legally sufficient to vest or ■divest the ownership, why may he not do so in the case of land, as well as •of a chattel........ “It would seem, that there is nothing in principle, to prevent the owner from abandoning his right of property in land, provided the intention "to do so be evidenced by

an act or deed legally sufficient to operate a divestiture of his title.” Dikes v. Miller, 24 Texas, 424-425; 25 Texas Sup., '281. In referring to that case, our present learned Chief Justice of the Supreme Court said: “It would seem therefore, the question of the relinquishment of his title to land by a settler, under the colonization laws as "they existed at the date of the transaction now under consideration, is very different from that of an abandonment of title by one holding under •a patent from the State. This latter question was discussed in Dikes v. Miller, 24 Texas, 417, but was not decided.

Yet the opinion in that ■case shows that the court were strongly inclined to hold that, although ■there was no officer in the State empowered to accept a deed of relinquishment, yet when such a deed was executed by a land owner and deposited in the general land office, it would be deemed a divestiture of title ■oí the land so relinquished so far as he was concerned. “The court then was treating of a title absolutely perfect in the grantee, and applying it to the principles of a system of jurisprudence, which requires that conveyances of land shall be in writing. “The doctrine that title may be divested by abandonment has been recognized by the courts of other states.

It is, however, doubtful whether the point has ever been directly involved in any authoritative decision.” 3 Wash, on Real Prop., book 3, chap. 2, sec. 5, (4th ed.) p. 61, et seq. Sideck v. Duran, 67 Texas, 261, 262. In the case of Hanrick v. Dodd, 62 Texas, 89, the court said: “Under the Mexican law, as under the common law, an estate granted by the government cannot afterwards be divested upon mere surmise or suggestion. A formal conveyance, or a regular proceeding, is requisite. Dikes v. Miller, 25 Texas Sup., 289; Smith v. Shackleford, 9 Dana, (Ky.) 452; Robie v. Sedgwick, 35 Barb. (N. Y.) 329; Ferris v.

Coover, 10 Cal.,. 617; Montgomery v. Bevans, 1 Saw., 653.” The statute of frauds requires that conveyances of land shall be in writing. While a party may divest himself of title to land, or rather he may become estopped from claiming title, by a disclaimer filed in a judicial proceeding, yet, it would be carrying the doctrine further than it could be sustained on principle, to hold that such a disclaimer or abandonment could defeat the right of a third party to foreclose a mortgage on the land in his hands. The disclaimer of Phillips does not vest title in the estate of Blasingame.

In order to have that effect, if title was ever' vested in Phillips, there must have been some act on the part of Phillips-which would be held good as a conveyance of land. If the sale by the trustee was regular and vested the legal title to the land in R. G-. Phillips, his subsequent abandonment or disclaimer could not re-vest the title in the estate of Blasingame so as to prevent appellant from foreclosing its mortgage on the land.

If Phillips had acquired title to the land and had subsequently executed to the administrator of the estate of Blasingame a warranty deed to the property, it would have been like a new purchase of property, and he would have taken the property subject to all valid liens and mortgages then upon it.

Under our views of the case, we might make a final disposition of it-here, but inasmuch as the case has been complicated on the trial by a consolidation with cause number 3523 and the injection of irrelevant issues, and the question as to whether the title was vested in Phillips under his purchase does not seem to have been fully developed in the court-below, it is deemed proper to reverse the judgment and remand the case-for a new trial, and it is so ordered. Reversed and remanded. Delivered May 23, 1896.

From the foregoing ruling and judgment of the Court of Civil Appeals Phillips, Loyd, the administrator of Blasingame’s estate, Clemma Blasingame, the minor in possession of the homestead, and the First National Bank of Waxahachie prosecuted a writ of error; to obtain which from the Supreme Court they averred that the ruling practically settled the case; that the sale of Phillips was regular; and that another trial could not change the result of the court’s rulings. GAINES, Chief Justice. The judgment of the trial court in this case was reversed by the Court of Civil Appeals and the cause remanded.

In order to give jurisdiction to this court, the plaintiffs in error (the appel lees in the Court of Civil Appeals) in their petition for the writ of error, alleged, in effect, that they could adduce no better evidence upon another trial and that the decision of the Court of Civil Appeals “practically settled the ease.” Finding this allegation correct, we granted the writ without an examination into the assignments presented in the petition. Having now considered the case upon its merits as presented in this court, we find no error in the judgment of the Appellate Court.

The elaborate opinion of the Chief Justice of that court thoroughly discusses and correctly disposes of the questions involved and saves us the labor of further discussion. Since we have acquired jurisdiction on the ground that the decision of the Court of Civil Appeals practically settled the case and since we find no error in their judgment, it becomes our duty under the statute to affirm that judgment in so far as it reverses the judgment of the District Court, and to render final judgment heré in favor of the defendant in error, which is accordingly done. Affirmed and Judgment rendered.

In accordance with the foregoing opinion judgment was rendered in the Supreme Court, reciting that the judgment of the Court of Civil Appeals was found correct; that writ of error had been granted on the ground that it practically settled the case; and the court thereupon, proceeding to render such judgment as, between the parties, should be rendered on the findings, decreed that the estate of B. F. Blasingame was indebted to the J. B.

Watkins Land Mortgage Company for the amount of the bond, $3054.70; that the same was a lien upon the 190 acres of land describing the two tracts of 153-|- and 36| acres respectively; that such lien he foreclosed and the land ordered sold for its satisfaction; and that, Phillips having disclaimed any right as against the administrator, the balance after satisfying the debt and costs should he paid to the administrator of BlasingamAs estate.

The decree further provided that the judgments of the District Court and the Court of Civil Appeals, so far as they reclassified the claim of plaintiff in error against the estate he affirmed.