Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62. Page: 298
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293 BLACK V. BLACK. [Tyler Term,
Opinion of the court.
require in its judgment that appellee should refund the money to
him, before being put in possession. He alleged that the personal
property sued for had been appropriated to the payment of debts
in accordance with directions of E. P. Black, and denied generally
the allegations of appellee's petition. The trial court excluded all
evidence of the foreclosure proceeding in the former suit, on the
ground that neither E. P. Black nor appellee were parties thereto.
Judgment was rendered in favor of appellee for the rand, upon
her paying to appellant the sum of $131,50 within twelve months
from the date of judgment.
TF P. P.cLean, for appellant.
No briefs on file for appellee.
WEST, ASSOCIATE JUSTICE.--Under the special facts of this case,
as disclosed by the record, there can be no question but that the
wife can both institute and defend a suit when such action becomes
necessary for the protection of herself or property, without the
joinder of her husband. Ryan v. Ryan, 61 Tex., 474, 475.
The appellee was not a party to the judgment and decree, obtained
by the appellant against HIargrove and his wife, for the foreclosure
of the vendor's lien on the land in controversy.
Neither she nor her husband are named in, or bound by, the decree.
Nor is the title, or claim, there admitted to be held by them
to the land in question, in the least degree affected by the proceedings
had by the appellant against HIargrove and his wife, so far as
is disclosed by the record now before us for consideration.
In cases of this character for the foreclosure of a deed of trust,
or a mortgage, or a vendor's lien, or like claim on real estate, it has
been repeatedly held by this court that persons holding the relation
to the subject-matter in controversy sustained by the appellee and
her husband in this suit, are, in the very nature of things, necessary
parties to the foreclosure suit and the decree there rendered. Beck
v. Tarrant, 61 Tex., 404; Slaughter v. Owens, 60 Tex., 671 and 672;
Davis v. Rankin, 50 Tex., 279; Schmeltz v. Garey, 49 Tex., 49;
Lockhart v. Ward, 45 Tex., 227. There are many more authorities
of our court to the same effect.
Without their presence in the suit the decree of foreclosure would
be of no avail against them, as they would still hold the legal title
until divested of it in some mode known to the law.
The judgment and decree offered in evidence was not binding on
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62., book, 1885; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth28512/m1/320/: accessed May 5, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .