Poarch v. Duncan

STEPHENS, Associate Justice. Appellant recovered judgment against appellee J. C. Duncan for the amount of his debt, but to so much of his petition as sought to establish and foreclose a mortgage on a section of land in Ochiltree County, the court sustained exceptions. The main objection urged in these exceptions to the petition was that it sought to fix a lien on real estate by alleging a parol agreement to execute and deliver the mortgage sought to be established. According to the allegations of the petition, the appellees signed and acknowledged a mortgage, in the nature of a deed of trust, on a section of land in Ochiltree County, as security for a loan made and a further loan to be made by appellant to appellee J. C. Duncan, but, instead of delivering it, J. C. Duncan fraudulently destroyed it and conveyed the land to his wife without consideration, after he had obtained from appellant the possession of the promissory note given to evidence the loan, on the promise that he would take it and the deed of trust to the county seat and'have new papers prepared so as to include in one note and mortgage the sum named in this note and an additional sum. He not only destroyed the undelivered mortgage, but also the note, and refused to execute any other papers. His insolvency was also alleged. However much we might desire to express our disapproval of the reprehensible conduct of the appellees as alleged in the petition, we hardly see how we could reverse the judgment sustaining exceptions to the petition and give to the statute requiring conveyances of land to be both executed and delivered the effect which our Supreme Court seem to have given it. (Rev. Stats., art. 624; Castro v. Illies, 13 Texas, 235; Boehl v. Wadgymer, 54 Texas, 589; Johnson v. Portwood, 34 S. W. Rep., 599.) Appellant seeks to avoid the force of this statute on *277 the ground that a mortgage merely creates a lien and is not a conveyance of any estate in lands; but long ago the law defined a mortgage to be “a conveyance of an estate or property by way of pledge for the security of a debt, to become void on payment of it.” (4 Kent, 136.) True, according to the rule in equity, which prevails in Texas, the legal title does not pass to the mortgagee, but the mortgage in terms usually conveys it, subject of course to the defeasance clause, and it has always been treated in this State as a conveyance. It is one link in the chain which passes the legal title to the purchaser at foreclosure sale. Because it is a conveyance it is held that the husband and wife must join in an execution of a mortgage on the wife’s property. Other instances might be cited. At all events, the cases above mentioned, or at least the two first mentioned, are construed in the third named to hold that “an equitable mortgage can not be created by an agreement not in writing,” doubtless for the reason that to hold otherwise would be an evasion of the article of the statute cited. It is not very clear to the writer, however, that a parol agreement upon sufficient consideration to execute a written mortgage on real estate should not be enforced in Texas, since it is here held that an express trust in lands may be created by parol. But however this may be, and although there seems to be room for the contention that the cases above cited, when critically analyzed, would not require the holding that a parol agreement to execute a mortgage could not be enforced, we accept these decisions as authority for the judgment rendered in this case. The allegations of fraud and insolvency do not seem to be material. The result would have been the same to appellant if, acting in good faith, Duncan had merely failed to deliver the mortgage. His destruction of it with a bad motive did not place appellant in any worse position. We need not discuss the effect of insolvency. The judgment is affirmed. Affirmed. Writ of error refused.