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It is thus seen that a deed absolute on its face, but given as a security for a debt, is a mortgage with all the usual incidents of a mortgage, except such as grow out of the dealings of third parties without knowledge of the facts, and the right of a court of equity to impose equitable conditions in consideration of the hearing of parol proof. Jones on Mort., sec. 283; Hannay v. Thomson, 14 Texas, 142; Mann v. Falcon, 25 Texas, 275.

It follows, therefore, that if the facts set up in the pleadings of appellant amount to a mortgage of the nature above discussed, that is to say, if the parties who could have made the transaction a mortgage by a deed direct from R. E. Stafford to deceased with the accompanying parol agreement, could through the sheriff acting as their unconscious agent convert the sheriff's deed into a mortgage, then the defense of the four years statute of limitation is ineffectual.

The sheriff conducting a sale under execution is not the agent of the judgment creditor, but in a certain sense the agent of the judgment debtor, constituted such by law, without the consent of the latter, to convey such title as the judgment debtor has in the property sold. His authority as such grows out of the judgment, execution, and levy just as the trustee in a deed of trust or the mortgagee in a mortgage with power of sale is an agent or attorney in fact for the owner of the property for the purpose of conveying title to the purchaser at a sale for the payment of the debt thereby secured, deriving his authority from the instrument under which he acts. The deed in each case connects the title of the purchaser with that of the debtor, and the judgment and execution in the one case and the mortgage or deed of trust in the other is the source and evidence of such authority. Ordinarily what one can do by himself he can do through another, and in the foreclosure of an ordinary mortgage the law requires the sheriff to do for the mortgagor what he himself should have done.

In the case before us the loan was actually arranged. The things to be done and the manner of doing them were agreed upon. At the last moment, and when it was too late to arrange otherwise, B. F. Stafford, the debtor, actually assented to the sheriff's sale and sought to modify its effect by the parol agreement. The sheriff had no concern in the matter save to secure the satisfaction of his execution. Had both parties been present at the sale and notified him of their purposes and agreement, he could not on any sound legal principle have forbidden the arrangement.

Appellant's counsel contend that such a transaction as the one alleged is not a mortgage but a constructive or resulting trust, enforcible alone in equity, because the sheriff's purpose was to pass the legal title and he was no party to the private arrangement between the parties and had no knowledge of its existence. If this is sound, then if he had such knowledge and did assent, the transaction would become a mortgage. But what is the difference in either its practical or legal effect? Sup

pose one acting under a power of attorney for the conveyance of lands is authorized by his principal to make an absolute deed to a tract of land, and suppose the grantee in such deed in fact accepted it under an agreement with the principal that it should operate only as security for a debt, could the facts that the principal saw fit to withhold from his attorney in fact knowledge of the parol agreement have any possible effect on the nature of the transaction? It seems to us the practical and legal effect is the same, both in the case supposed and the case at bar. We can perceive no reason for requiring the principal to disclose his private purpose to his agent. The exact point has been decided in favor of the doctrine here announced. Sweetzer's Appeal, 71 Pa. St., 264; Danzeizer's Appeal, 73 Pa. St., 65; Jones on Mort., sec. 334.

On a like state of facts it has been held in Texas that the relation of mortgagor and mortgagee is established, and that the mortgagor's interest is thereafter subject to execution. Howard v. Hirshfield, 59 S. W. Rep., 55.

In the case cited the words mortgage and trust are loosely used, the court not being called on to make the distinction, and this is true of many cases in which, by reason of the fact that the question was discussed only incidentally, the courts did not undertake to distinguish the terms.

Appellce cites the case of Satterwhite v. Loomis, 81 Texas, 64, in support of his contention that the transaction constitutes a trust. In that case Loomis & McLachlin had been acting as agents for Satterwhite in the sale of lands. Having occasion to leave the State temporarily, Satterwhite withdrew his lands from sale. In his absence some of his lands were levied on and sold, and his former agents, voluntarily acting for his protection, bought the lands in for his benefit, using their own funds for the purpose and taking a deed to themselves. Thereafter they sold the lands, and were sued by Satterwhite for their value. It was decided that the agents held the land in trust for their former principal, and he was permitted to recover their value upon reimbursing the agents for their outlay. But in that case there was no agreement, no debt, no relation of debtor and creditor. The agents intended to take title to themselves and actually did so. The transaction could not have been a mortgage, for there was no agreement that it should be such, and all the elements of a mortgage were lacking. The decision amounts to no more than a declaration that even a voluntary agent will be held to good faith with his principal.

In McCampbell v. Durst, 15 Texas Civil Appeals, 522, the deed assailed was made by the administrator in fraud of the heirs, and under such circumstances that by a timely action on their part it could have been annulled. The administrator had the authority to make the sale and deed, and the title thereby actually passed to the grantee. It was held that the suit to annul the deed for fraud was barred in four years. By reason of the fraud a constructive trust arose in favor of the de

frauded heirs, and their right to enforce it was of course subject to the bar of stale demand, or our statute of four years.

In Hearst v. Kuykendall, 16 Texas, 327, and Miller v. Rusk, 17 Texas, 170, also cited by appellee, it is held that a suit for specific performance to convey land is a personal action, and need not be brought in the county where the land is situate.

It is clear that none of the authorities relied on by appellee are decisive of the question, and it seems to us they are entirely consistent with the conclusion we have reached.

When a deed is assailed for fraud equity will annul it because it ought not to be permitted to stand. But the right to annul a fraudulent deed will not support an action of trespass to try title. The right to annul the deed must be first exercised in a direct attack thereon. The deed may be annulled and the possession of the land and damages recovered in the same suit, if it be against a party to the fraud or one having notice of it.

But let us suppose a case where a fraudulent grantee conveys to another in satisfaction of an antecedent debt, or without consideration. The deed can not be collaterally attacked in a suit against the grantee. This is illustrative of the class of cases in which the right to recover property rests upon the establishment of an equity, distinct from the right to the property.

In the case at bar the paramount title being in B. F. Stafford, and the right to possession being in him, it is clear that if he had been illegally ousted by another, under claim of title, he could have recovered upon proof of the facts, and a plea of outstanding title in R. E. Stafford could have been met and defeated by proof that the deed evidencing that title was in fact a mortgage. Hannay v. Thompson, and Mann v. Falcon, supra.

Let us carry the illustration a step further. Suppose R. E. Stafford, after procuring the deed, had promptly laid claim to the land thereunder, repudiating the parol agreement; and suppose B. F. Stafford had possession of the property; it is plain that within the period of limitation contended for by appellee the mortgagee could not have recovered the land of the mortgagor •except by foreclosure and sale, for within that time he could have been effectively met by proof of the facts. If then he sued for possession after the expiration of the bar, could any court consistently hold that his suit would not be defeated by proof of the facts? In such case the mortgagee's suit would not be allowed to prevail, but the mortgagor's right in a cross-action to have the deed annulled as a cloud upon his title might be barred. And herein lies the distinction which is happily made by Justice Williams in discussing the questions involved in McCampbell v. Durst, supra.

Inasmuch as the only ground upon which the demurrer could have been sustained is set forth in the contention of appellee set out above, and as we are of opinion it is untenable, it is unnecessary for us to

determine whether a devisee, such as appellee, could set up the defense of limitation, if it were otherwise permissible.

For the reasons given, the judgment is reversed and the cause remanded.

Reversed and remanded.



Decided May 14, 1902.

1.-Mutual Benefit Insurance-Wrongful Expulsion from Order-Recovery of

Premiums-Limitations. Where a member of a mutual benefit insurance association was wrongfully expelled, limitations began to run from the day of the expulsion against his action to recover premiums paid by him. 2.-SameValue of Insurance as a Credit.

If plaintiff's expulsion from the association was wrongful then it would not be entitled, as against his claim to recover the premiums he had paid, to a credit for the value of the insurance during the time it was in force. 3.-Same-Defense-Expulsion Void.

As against plaintiff's claim, after his wrongful expulsion from the association, to recover the premiums he had paid, the association was not entitled to urge as a defense that the expulsion was void for want of notice and trial, as required by its laws. 4.-Same-Expulsion-Appeal Necessary.

Where the association was composed of a supreme council and local lodges, and plaintiff was expelled by a local lodge without trial or notice as required by the laws of the order, and although he was advised of the illegality of the action and his right of appeal, he made no appeal to the supreme council, he was not entitled to maintain an action to recover the premiums he had paid. 5.-Same-Reinstatement.

Plaintiff's expulsion not having been ratified by the supreme council, which was invested with full power in the premises, there was no expulsion in fact, and he was not entitled to recover for premiums he had paid, but had the right to be reinstated in good standing upon the payment of all dues and premiums that had accrued.

Appeal from Harris. Tried below before Hon. Charles E. Ashe.

W. P. & A. R. Hamblen, for appellant.

Otto Pape and Coleman & Abbott, for appellees.

GILL, ASSOCIATE JUSTICE.—This suit was brought by 0. F. Gambati and wife against appellant the Supreme Council of the Catholic Knights of America, a fraternal insurance association, to recover from the order the premiums which Gambati had paid in on a life insurance certificate, with interest thereon. There was also a prayer for exemplary damages.

The case was heard by the court without the intervention of a jury, and judgment was rendered in favor of appellees for the sum of the

premiums paid in and interest. Nothing was allowed on the prayer for exemplary damages. From this judgment the association has appealed.

The facts out of which the suit grew are as follows: The association is a fraternal organization with the usual insurance feature. It is composed of a supreme council and subordinate councils, the latter getting their authority for existence from the supreme council. The authority, powers, and rules of government are prescribed by the constitution and by-laws of the order. To each member making proper and satisfactory application therefor there is issued a certificate for life insurance wherein the association promises to pay to a named beneficiary the sum of $2000, upon the death of the member insured. The sum to be paid to the beneficiary might be less than $2000 if the membership of the order was less than that number, but could not in any event exceed that amount. The fund out of which this sum is to be paid is maintained by mortuary assessments upon the members, and failure to pay these assessments within stated times operates as a forfeiture of the insurance. There were other sums payable as dues for the general purposes of the order. In 1886 Gambati became a member of the order in Albany, Ga., paying all sums prescribed by its rules to entitle him to its benefits, and there was issued to him a benefit certificate for $2000 payable to his wife upon his death. In April, 1892, appellee removed to Houston and transferred his membership to a subordinate lodge called St. Patrick's Branch No. 354, located at that place. He maintained his membership in the last named lodge, paying all lawful dues and assessments, when about March 4, 1900, he was informed by an officer of the local lodge that he had been suspended from the subordinate branch and that the suspension forfeited his policy. On the 7th of March, 1900, Gambati wrote to the supreme secretary of the order, complaining of the action of the local branch, and received a reply, dated March 10, stating that the local branch had acted without authority, and advised him that his complaint had been forwarded to the supreme council. On April 4, 1900, the supreme secretary wrote to the secretary of the local branch regarding the matter, calling attention to the invalidity of the action of the local branch in suspending Gambati. This suit was filed on April 7, 1900. The order of suspension was rescinded about two months after it was made and Gambati was notified of the fact. The supreme council never marked Gambati suspended nor considered him suspended. They voluntarily considered the case at their first meeting after suspension and advised the local branch that it had no legal effect; that Gambati was still a member, and directed them to proceed to collect his dues.

The reason for the expulsion was that Gambati had joined the Knights of Pythias, a secret order under the ban of the church. Joining a secret order under the ban of the church was prescribed in the constitution as a cause for expulsion and a forfeiture of all rights and benefits. The Knights of Pythias was an order which was under the ban and Gambati had joined it. Expulsion for this cause could be had only after notice

Vol. 29 Civil-6.

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