Dibrell v. Smith

Walker, J. We have no doubt of the correctness of the decision of this case as reported in 31 Texas, 239, on the facts as the case was then presented to the court; but there are other principles drawn into this case which were either not before the court, or which are not considered in the reported case. Smith took upon himself the risk of violating the law by releasing the mortgage which secured his trust fund. He has honorably met that risk by assuming and paying the debt to his wards ; he is no longer a trustee for them-in this behalf ;. in his relation to the appellees, he is completely divested of his fiduciary capacity, and he in this case must be held as any other person acting sui juris. In this view of the case we are of opinion that he cannot hold Dibrell for Erskine’s debt. But there may be a question whether the land purchased by Erskine, and now owned by Dibrell, is not bound by a vendor’s lien, [449] unless it should be held that the vendor’s lien was lost by the taking personal security, or that it was merged into the mortgage and expressly released. Should it appear that Dibrell has been guilty of any fraud in procuring the release of a mortgage by Smith, in order that he might seize upon Erskine’s share of the land and sell it to pay a debt to himself, equity might uncover and redress such a transaction. The judgment of the District Court must be reversed and the cause remanded. Reversed and remanded. Opinion rendered October 14, 1873. Motion for rehearing continued.