Hagist v. Vogt

SMITH, J. In the original opinion it was said that both the mortgages in question were supported by sufficient consideration. We have reached the conclusion after further investigation, however, that the evidence of the considération for the mortgage [351] taken by Vogt is not sufficient to sustain that instrument as against the prior, even though unknown, equities of others. While it was shown that Bowers executed the mortgage to secure the payment of his note evidencing an existing obligation to Vogt, and that the time of payment of that obligation was thereby extended by Vogt, the evidence further tends to show that the act of Bowers in executing the renewal note and the mortgage was purely voluntary upon his part, and was done without Vogt’s knowledge or procurement ; that the mortgage was placed of record by Bowers without consulting Vogt, the mortgagee; and that the latter still holds the original note, the renewal of which is here sued on. In other words, it does not appear that Vogt took the mortgage in consideration of the extension of the time of payment of the obligation thereby secured, and knew nothing of the execution of the note or mortgage until a later date, and then accepted them only because he thereby obtained additional security for the debt. The evidence tends to show, also, that Bowers, the debtor and ' mortgagor,, executed ’ those instruments and placed them of record for the purpose of evading his obligations to appellant, another creditor, rather than of procuring additional time upon his obligation to Vogt. If this is tine, and if it is true that Bowers did not execute the mortgage in pursuance of an agreement with Vogt to extend the .time of payment of his debt to the latter, there was no valid consideration for that mortgage such as to give it precedence over the unknown equitable claim of Hagist. Ingenhuett v. Hunt (writ of error denied) 39 S. W. 310, 15 Tex. Civ. App. 248. Appellant’s motion for rehearing will be granted, the judgment reversed, and the cause remanded. ■