Bosse v. Johnson , 73 Tex. 608 ( 1889 )

Collard, Judge.—

We do not think the evidence justifies the conclusion of the court that Johnson was in possession of the premises. Oadwallader, the tenant in possession, testified that he rented from Clark and paid him the rents, he (Clark) receipting for the rents as agent for Moore until Moore sold to Johnson when he signed as agent for Johnson.

Moore testified that he received no rent. Being shown a draft, he testified: “This draft relates to rent of the place on Fourth Street, etc. I did not get the money paid on this draft. I gave the order to Clark; he got the money. Oadwallader owed it for the rent of the place. I don’t know who he did owe it to. Some time prior to my giving the draft Judge Ogden came to me and wanted me to purchase the property. I . was to have assistance about the money for payment. I suggested at the time that if Clark wanted the property out of his own name to put it in his son’s name, but Judge Ogden objected and so did Clark, so I bought the property and paid $1000 on it. It was understood that Clark was to have control and collect the rents then due, but I objected to his collecting them afterwards, but Judge Ogden said ‘for the present let Clark ■collect the rent.’ This continued until I told Judge Ogden I would not do so any longer, and the property was then sold to Samuel M. Johnson. * * * I gave the orders for rent in Clark’s favor.”

Silsby, who bought a part of the property for $900 and paid the money to Johnson, says: “I have lived there about a year. I don’t know who exercises ownership over the balance of the property. I saw him (Clark) lately mending the roof. I see him at work there quite often.”

It is evident from the foregoing testimony that the possession of the premises was for Clark, and that whatever Moore or Johnson had to do with it was for and on account of Clark, the real owner.

A mortgagee in lawful possession can not be ousted by one claiming under the mortgagor until the mortgage is satisfied. Duke v. Beed, 64 Texas, 715; Loving v. Milliiien, 59 Id., 426.

Johnson was not in possession, and it was error for the court to stay plaintiff’s writ of possession until the mortgage in favor of Ogden, Ogden & Johnson was paid.

If the deed of Moore to Johnson, executed by the direction of Clark, was not a mere pretense, and was in fact intended to secure a debt due Ogden, Ogden & Johnson, and was not made to defraud Clark’s creditors, under proper pleas the mortgagees, had they and other necessary party been before the court, could have had the mortgage forclosed and the property sold to satisfy the same. But this could not have been done under Johnson’s plea of not guilty. League v. Rogan, 59 Texas, 429.

Because of the error of the court in finding that Johnson was in possession we are of opinion the cause should be reversed and remanded.

Reversed and remanded.

Adopted April 30, 1889.