Scott v. Mann

Walker, J. A branch of this case was before us .at the last term of the court, and it would appear that from some cause or other, we fell into some confusion as to the position of the parties. But the mistake was immaterial, and the question presented was properly decided, whether it was the real question in the case or not. For, had we understood the case then as it is now presented, our judgment would have been the same, though other reasons, apparent in themselves, would doubtless have been given for the opinion. The case as now before us appears to stand thus:—On the 25th day of August, 1865, F. M. Wigginton, being indebted to Boy B. Scott in the sum of two thousand seven hundred and thirty dollars and seventy cents, executed, to secure the payment, a deed of trust (in which his wife joined) to Boy B. Scott, oyer the property in controversy. The trust deed was recorded on the 9th day of October following. On the 27th of December of the same year, Wigginton and wife sold the property to the appellee, Mann, taking in payment two promissory notes of four thousand dollars each. One of these notes was afterwards transferred by Wigginton to Waller, the co-appellee of Mann; and it is insisted that Waller had both actual and constructive notice of the incumbrance of the property to Scott. Waller took the note from Wigginton in satisfaction of a debt. On the 3d day of January, 1866, by an arrangement between Wigginton, Mann, and E. B. Scott, the latter acting as the agent or attorney of Boy B. Scott, it was agreed that Mann should become paymaster to Scott of his debt—Wigginton giving Mann credit for the amount, on one of the four thousand dollar notes. After this arrangement, J. GL and J. J. McConnell became interested with Mann in the property, and there is some evidence to show that Waller was also a partner in the firm of McConnell, Mann & Co. This firm paid one-half or more of the [164] debt due to Scott. On the 3d day of July, 1866, they executed their promissory notes for the remainder, and secured them by a deed of trust over the same property. This deed of trust was accepted by Scott, as a substitute for his first deed from Wigginton and wife, if the action of G. W. Guess, Scott’s attorney, can be regarded as binding in the premises; but it is perhaps unnecessary to decide this question. On the 3d day of September, 1867, Record, Scott’s attorney, sold the property under the deed of trust from Mann and McConnell ; and it appears that he bid off the property for E. B. Scott, at the sum of one thousand dollars, which paid the balance due at the time to Roy B. Scott, and a deed was made to appellant. It is not complained that the agent has been guilty of any fraud toward his principal or any other person; hence the authorities referred to in the appellee’s brief have no application to this case whatever. Record did not buy for himself. In the case of Shannon v. Marmaduke, 14 Texas, 217, the court say that the rule is well settled—that an agent to sell for another cannot himself become a purchaser. But this principle, says Judge Wheeler, “ like most others, may be subject to some “ qualification in its application to particular cases.” And this same rule is laid down perhaps more clearly by Justice Bell, in Pridgen v. Adkins, 25 Texas, 388. The learned judge says: “ The general principle that an agent to sell cannot buy for “ himself, must be understood to mean that an agent, author- “ ized to sell the property of his principal, cannot become the “ purchaser of it through the instrumentality of his agency, “ either directly or indirectly.” This is certainly very sound law, for the agent cannot deal with himself, both as buyer and seller. But we know of no principle of law which would exclude the agent of A from buying in the property for B, if sold at public outcry in market overt, or in the manner in which sales are usually made by ministerial officers. Here Record was the agent of Roy B. Scott, and as such he sold the property to E. B. Scott, or accepted his bid for it. [165] It appears that at the time of the sale, the McConnells had parted with their interest in the property, and Mann and Waller were in possession, carrying on the milling business. Waller is the son-in-law of Mann, and, during a part of the time these transactions were going on, he lived in the house with his father-in-law, and it is claimed, as we think with very good reason, had full knowledge of the trust sale. On the 1st day of January, 1868, Waller purchased the property from Mann, giving the note which he had received from Wigginton, in full payment, and took a warranty deed for the same; and it is in evidence' that Mann, on receiving the note, tore off his signature, and put it away with his private papers. This was the note he had given to Wigginton. The case heretofore decided by this court was an action brought by the appellant to recover possession of the property, wherein a demurrer had been filed to the petition. The demurrer had been sustained by the District Court, and we reversed the judgment and remanded the case. And now, it seems that Waller would have us revoke our former decision; but, in addition to the claim of unfairness in the sale of the property to Scott, he claims that the property was bound by vendor’s lien, for the note he received from Wigginton and sold to Mann; and upon the trial of the cause, the jury found that there was due to Waller the sum of six thousand three hundred and twenty-two dollars and twenty-two cents. And without any finding of the jury as to the vendor’s lien, the court entered a judgment canceling, annulling, and setting aside the deed from Mann to Waller, and that Waller recover from Mann the sum stated in the verdict, which was the amount of the four thousand dollar note Waller had received from Wigginton, with the interest thereon; and further, that Waller have his vendor’s lien for the full amount of the judgment, upon the land which is described in the judgment. And the property is ordered to be sold, and if any surplus remains of the proceeds of sale, after satisfying Waller’s judgment, it is to be paid to E. B. Scott; that Waller shall recover from Scott and Mann his costs, and that Scott shall re [166] cover-from Mann his costs, and execution issue in favor of the officers of the court against each party respectively, for all the costs expended in the suit. This is a most extraordinary judgment, and is erroneous in every essential particular. Waller had no right whatever to a judgment for one cent on the four thousand dollar note, having parted with it to Mann; nor had he any vendor’s lien upon the property. The lien could only have been an incident to the note, if, indeed, the doubtful point be conceded, that the vendor’s lien still followed the note after its indorsement by Wigginton to Waller. Authorities of' the highest respectability maintain that a vendor’s lien is lost when additional or other securities are taken; and when a note passes by indorsement, the indorsee does acquire another security in the liability of the indorser. JBut Waller had parted with all his right and title in the note to Mann, and evidently Mann regarded the note as canceled. Then Mann was the owner of the note. The note could not he owned by Mann, and at the same time a vendor’s lien remain in Waller; for if such were the law, no lien would ever have passed to Waller on the indorsement of the note by Wigginton; but would have remained in the indorser. This, in our view of the law, is simply absurd. But to dispose of this case, let us see whether Mann could have enforced the payment of the note under a vendor’s lien, as against the purchaser of the property under his own trust deed to Scott. This proposition needs no discussion; and the only remaining feature in this case necessary to be noticed is, Was the sale to E. B. Scott vitiated by gross inadequacy of consideration ? It is doubtless true that the property did not sell for near its value, and a very sufficient reason appears why it did not. Mann appeared on the day of sale, and gave public notice that he would dispute the title, and warned all persons against bidding on the property, and thus probably prevented it from bringing more than it actually sold for. And for this circumstance the appellant is in no way responsible. [167] The judgment of the District Court is reversed, and the cause remanded, to be proceeded in in accordance with this opinion. ¡Reversed and remanded.