Focke, Wilkins & Co. v. Weishuhu , 55 Tex. 33 ( 1881 )

Watts, Commissioner.

The evidence introduced upon the trial shows that the. appellee loaned the money to Peters for the purpose and with the intent that the same should be used in the payment of the Blum debt; the loan was made by him upon the faith that the Blum deed of trust should be assigned to him to secure the loan to Peters; and it was understood and agreed by and between Peters, Blum and Weishuhu, that the deed of trust was to be assigned to the latter by the Blums. In fact, the appellee refused to advance the money until that arrangement was made. In the note executed by Peters to appellee for the money advanced by him, it is stated, “this note is secured by a deed of trust on two hundred and thirteen and one-third acres in Wharton county, and one hundred and twenty-four acres in Austin county; Texas, it being the same deed of- trust executed by the undersigned to Sylvan Blum, and for the benefit of Leon & H. Blum, and dated May 15, 1874, and duly transferred to Ernst Weishuhu, who is now the beneficiary of said trust deed.” The deed of trust was assigned and transferred to appellee on the 25th day of April, 1875, by M. Malsch, as attorney for Leon & H. Blum. This was two days prior to the execution of the note by Peters to Weishuhu.

The deed of trust was given to secure the Peters debt to Leon & H. Blum, was duly recorded in Austin county, and was prior in point of time, and was a superior lien to the deed of trust of Peters to A. B. Campbell.

The transaction between appellee Peters, and Malsch as the attorney of the Blums, did not extinguish or discharge the deed of trust to Sylvan Blum. It was agreed before appellee had advanced the money to Peters, that it was to be assigned or transferred to him to secure the loan; he had acted upon it, and the Blums had acc ?pted the benefit of that transaction; and had they refused to transfer the same to appellee, equity would have compelled them to do so: Hilliard on Mortgages, 337, 340.

But their attorney, acting for them in the collection of the Peters debt, with such powers from them as would be necessary or requisite in the discharge of that duty, secured to them the money by the arrangement; and in their name transferred the same to appellee. In their letter to their agent, Malsch, they agreed to transfer the same to appellee themselves.

We are of the opinion that the court did not err in treating the appellee as the assignee of the Blum deed of trust.

The second assignment of error is general, and does not point out the specific error complained of.

We are not informed by the assignment wherein the court erred in subjecting the Austin county land to the lien of the Blum deed of trust. From the brief of appellant, we gather this objection to be two-fold: 1st. That, the assignment of the deed of trust not having been recorded, the same was invalid. 2d. That appellants were purchasers for value, and without notice of appellee’s right. As to the first objection, we are of the opinion that, as between the parties and all persons with notice, the assignment or transfer of the deed of trust was as valid and effectual as if it had been duly recorded.

Were the appellants purchasers without notice and for value? It is shown by the evidence that' appellants did inquire of Sylvan Blum, the trustee, about that claim of Leon & H. Blum prior to the sale by Campbell, and that he informed them that the claim had been paid, and was satisfied. The evidence also shows that at the sale by Campbell, Malsch, who claimed to he the attorney of appellee, after the advertisement was read, and before the bidding commenced, gave public notice of appellee's claim to priority of hen upon the land. And while the witness does not remember all that Malsch said on that occasion, still enough is shown to at least require of appellants, if they desired further information, to inquire of Malsch about the matter. The evidence is to the effect that, after Campbell read the advertisement, Malsch gave notice of a prior incumbrance which he claimed to represent, and in doing so mentioned Leon & H. Blum and Peters, and held at the time a paper in his hand. We are of the" opinion that the court did not err in foreclosing the lien upon the Austin comity land. There being no error in the judgment, the same is affirmed.

Affirmed.

[Opinion delivered March 7, 1881.]