Blackwell v. Barnett

Citations

• 52 Tex. 326
• 1879 Tex. LEXIS 144

Syllabus

<p>1. Limitation as to debt secured by mortgage.—A mortgage is so completely iui incident o£ the debt which it is given to Reciñe, that if the debt is barred by the statute of limitations, the creditor is left without remedy upon his mortgage. If the mortgage be upon land, the creditor cannot dispossess the mortgagor by suit, after the bar of the statute is complete.</p> <p>2. Cases discussed and distinguished. — Fisk v. Wilson, 15 Tex., 430; Ware v. Bennett, 18 Tex., 794; and Sprague v. Ireland, 36 Tex., 657, discussed.</p> <p>3. Cases approved.—Duty v. Graham, 12 Tex., 437; Boss v. Mitchell, 28 Tex., 150; and Perkins y. Sterne, 23 Tex., 501, approved.</p> <p>4. Mortgage—Bulb of property.—The doctrine that a deed of trust is but a mortgage with a power of sale, has been so long held in Texas, that it has become a rule of property.</p> <p>5. Mortgage—Power to sell—The power of sale given to a trustee affects the remedy only, and is intended to give the creditor a speedy mode of foreclosure without resorting to a suit. The remedy is but cumulative, and suit may be instituted, when preferred.</p> <p>6. Injunction—Limitation.—The mere fact of posting notices of trust sale by a trustee before the debt secured by the trust deed is barred, but not in time to make the sale before the bar of limitation would be complete, cannot be held equivalent to the institution of an ‘‘ action- or suit,” which would suspend the running of limitation. '</p>