Nye v. Gribble

Walker, Associate Justice. It was competent for plaintiff by amendment to frame his petition with a view to the foreclose of the lien, if his title should prove to be only a mortgage. (44 Texas, 283, Moreland v. Barnhart.) In such amendment it was necessary to set out facts as basis for the decree of foreclosure. Discussing a similar case, Mann v. Falcon, 25 Texas, 277, Chief Justice Wheeler well remarks: “ They (the plaintiffs), were the actors seeking the aid of the court to enforce their supposed rights. They are supposed to have known what their rights were, and the facts upon which they depended, and if they were such as in any [462] event to entitle them to a decree of foreclosure and they desired that alternative relief in case their deed should be adjudged a mortgage instead of an absolute conveyance, they should have framed their petition with a view to that alternative aspect of the case. It was incumbent upon them to state a case which entitled them to the relief they sought.” In this case the answer among other defenses alleged that the plaintiff’s deed to the land was but a mortgage. At the end of the second amended petition, plaintiff adds merely the prayer for foreclosure if the court shall find his deed to be a mortgage. There is no allegation in the pleadings of the amount of indebtédness secured. There is testimony to some indebtedness from Casseday to Gribble with testimony in the record that Casseday had conveyed other lands to Gribble also to secure Gribble for his advances in money to Casseday. Objection was made to testimony of any debt, and attention was called to the condition of the pleadings of the plaintiff on the trial, and the defect is assigned as error. There being no allegations in the petition of the fact of indebtedness, the foundation of a mortgage, and without which no lien could exist, it is evident there was no basis for the decree of foreclosure. If the pleadings were such as to admit the testimony to the several transfers of land by Casseday to the plaintiff, decree should have provided that the sale of the Harrison five hundred and thirty-eight acres should be made after the lands of Casseday, still in Gribble’s name, had been sold. The copy of the deed from Casseday to his brother was wrongfully excluded. The statutory oath (Rev. Stats., sec. 2257), does not require that search for the original be shown. This, however, is immaterial save in the action of trespass to try title. The other copies, after Gribble’s testimony,were unimportant, as in effect he had admitted them. There was no error in the findings of the court that the omission to index the abstract of the judgment of Stone v. Casseday when recorded was fatal to the lien. This court has passed upon this identical act in Nye v. Moody. The certificate of the clerk does not state that he had indexed the page upon the record. There must be testimony to the indexing beyond the mere presumption of regularity in the discharge of his duties on the part of the officer charged with the duty of making the index upon recording the instrument. The clerk should certify to having indexed the paper. [463] Opinion delivered April 13, 1888. The production of competent testimony to the indebtedness could be insisted upon by the defendants Nye and others claiming the land. The confession of judgment by Casseday could not conclude the rights of the other defendants in the land. The action of the court below was correct in limiting it to a personal judgment against Casseday. Casseday was properly made a party defendant when the plaintiff changed his petition so as to attempt to secure in his action his rights as a mortgagee. For the error in decreeing foreclosure in absence of pleadings authorizing such decree the judgment below must be reversed. Reversed and remanded.