Mills v. Traylor

Citations

• 30 Tex. 7

Syllabus

<p>Neither prior nor subsequent incumbrancers, who are not parties to a proceeding to foreclose a mortgage, are bound by the decree. (Paschal’s Dig., Art. 4675, Notes 1061, 536.)</p> <p>The facts in this case are similar to those decided in Darby v. Graham, 12 Tex., 427, and the same principle is decided.</p> <p>If in any case the mortgagee, in an action of trespass to try title, may recover the lands mortgaged before foreclosure, it must be upon allegation and proof of such facts as would entitle him to a decree foreclosing the equity of redemption, and a refusal or neglect of the purchaser of the property to discharge the mortgage debt, after being advised of it.</p> <p>Where a deed of trust recites that the beneficiary had paid certain debts as the grantor’s surety, the amounts of which he would not give, and he authorized the trustee to sell to satisfy such as had been paid and should be presented to the grantor, and the trustee sold, but there was no proof that there really was any indebtedness, nor that the beneficiary had ever presented any claim as having been paid by him, there was no authority established to sell.</p>