Mervin v. Murphy

Citations

• 35 Tex. 787

Syllabus

<p>1. Iu a mortgage of improvemeuts on a city lot, the improvements themselves were described with certainty, hut the number of the lot was misstated. Held, that the maxim faina demonslratío non nocet applies, and the mortgage is good as between the parties, and as against a subsequent incumbrancer who had knowledge of the facts respecting the mortgage.</p> <p>2. See this case for an apt illustration of the distinction established by the Supreme Court of the United States in Hunt v. Itousmanierc, 1 Peters, 1, between a power coupled with an interest in the thing itself, and a power coupled with an interest only in the proceeds of the thing.</p> <p>8. On November 5, 1867, J. promised in writing to pay to the plaintiff, two months after date, $660 purchase money of improvements on a city lot, and further stipulated that in case she, J., should die, or refuse or neglect to pay, then the plaintiff should “have the power to appoint a trustee in writing, and such trustee shall have power to sell the aforesaid improvements for cash, and, when sold, in his capacity as trustee, to make good title to the purchaser,” the net proceeds to be applied by the trustee to the plaintiff’s demand. Subsequently, on December 27, 1807, J. executed to the plaintiff a formal mortgage on the same improvements, with power of sale, to secure a different debt; which mortgage warranted the title to the property, “except a primitive lien upon the same, kept also by the mortgagee, to the amount of $660,”—this having reference to the instrument of November 5. This mortgage was duly recorded on the day of its execution. Afterwards J. made a deed of trust on the same improvements, to secure a debt due the defendant;—and the controverted question is whether this deed of trust takes precedence of the plaintiff's demand secured by the instrument of November 5. (The priority of the plaintiff’s mortgage debt was conceded.) Held, on the authority of the Supreme Court of the United States in Hunt v. Rousman