French v. Pyron

Opinion by Walker, J. The first, second and third assignments of error question the correctness of the ruling of the court below denying the prayer for foreclosure of the trust deed, the oldest lien upon the land. The other assignments (there are twenty - one in all) relate to matters of practice and evidence not material to ascertain the rights of the parties. At the time of the trial below the supreme court of this state had held that liens against a bankrupt could only be enforced in the bankrupt court. It was in accordance with the authoritative rulings of the supreme court that the court below disregarded' the efforts by the defendants to assert the right of foreclosure against the land after Pyron’s discharge in bankruptcy. See Taylor v. Bennett, 38 Tex., 521, and Johnson v. Poag, 39 Tex., 95. These cases were expressly overruled in Elliott v. Booth, 44 Tex., 189, and later decisions. “ A creditor whose claim is secured bj^ lien on real estate may enforce his lien, notwithstanding the discharge in bankruptcy of his debtor, and although his claim was not proven up against the bankrupt’s estate.” Boone v. Reiss, 44 Tex., 385. Also, Truitt v. Truitt, 38 Ind., 16; Pierce v. Wilcox, 40 Ind., 70; Spring v. Eisenach, 51 Tex., 432; Bump (7th ed.), pp. 146, 536, 540. The holder of the lien, liargaretta Boberts, was not, therefore, required to enforce the note and trust deed in the bankrupt proceedings. The right to foreclose would not be concluded by proceedings to which she was not made a party. So far as we are advised by the record special exceptions were urged to this deficit. De Cordova, 721 the assignee, did not bring into court, by any notice or citation, French or his assignee holding the note; nor didjie take any proceedings to sell the land free from incumbrances. From all in the record, Be Cordova only sold the equity of redemption. There was then pleaded by the de- . fendant, Hargaretta Boberts, a valid debt owned by her, not barred by limitations, secured by a deed of trust, having the effect of a mortgage after Byron’s death and prayer for foreclosure. All the parties interested were before the • court. She was in no way interested in the question of ownership of the equity of redemption. Whether Sam G. French or the plaintiffs owned it she was equally entitled to have her debt satisfied out of these lands, or that they be sold for that purpose.' This right was denied; this was error. If Byron’s homestead was upon the land at the date of the trust deed his widow and children comprising his family . are entitled to the homestead exemption, free from incumbrance. It does not appear when the homestead right first attached to the land. For the error in the action in the court below in deciding from the pleadings that defendants had not the right to foreclose under their plea in reconvention, cause reversed and remanded.