Tinsley v. Boykin

Citations

• 46 Tex. 592

Syllabus

<p>1. Mechanics’ lien—Promissory note—Judgment. — A judgment was rendered for a sum found to be due on one of two notes, the other not being due at the time of judgment, both of which, it. was claimed, were secured by a mechanics’ lien on a house and fifty acres of land, to be token out- of a larger tract, “in such shape as may be fair and equitable,” The judgment was rendered for the note due, and it ordered sale of the house and forty acres of land, “to be token out of defendant’s tract in as near a square shape as it maybe done”—the sale to be for enough cash to discharge the note due, and on a credit for the remainder, until the other note should become due; but “if the premises should not sell for a sufficient sum to pay the entire two notes, then the sheriff shall apportion the said purchase-money ratably between the note due,” for which judgment was rendered, and the note not due, and the portion rated to the note due, and for which judgment was rendered, “shall be for cash, and the remainder on a credit.” It also provided that for the postponed payment, the sheriff should take a lien on enough of the land sold to secure the deferred payment: Held—</p> <p>1. Upon default of payment of the first of several notes secured by mortgage, suit could be maintained for a foreclosure of the mortgage to satisfy the first note, and for a sale of the entire mortgaged premises, if the land is not properly susceptible of division.</p> <p>2. The decree in such a case should be so rendered as to make equitable provision for the payment of all of the notes embraced in the mortgage lien.</p> <p>3. The decree should be so shaped, if the matter is not at once concluded by a rebatement of the interest on the notes not due, that the court should have control of the case and the title of the land until the notes secured by the mortgage lien are all satisfied. A judgment ordering a sale by the sheriff, and requiring him to take a lien on the land sold to secure a deferred payment, is