
    ENGELKING v. MERTENS.
    (No. 6011.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 10, 1918.)
    1. Trespass to Try Title <&wkey;41(l) — Evidence oe Title — Sufficiency.
    Evidence which showed who were the mortgagee’s heirs and that the mortgagee died leaving an estate, but which failed to show that there was no administration pending or that administration was unnecessary, was insufficient to prove that a conveyance by the heirs to plaintiff bringing trespass to try title passed, any right.
    2. Trespass to Try Title i&wkey;6(l) — Title to Support.
    In trespass to try title, plaintiff can recover upon the strength of his own title only.
    3. Trespass to Try Title <®=>41(1) — 'Title to Support — Sufficiency of Evidence.
    In trespass to try title, where plaintiff claimed a superior legal title from a common source, helé, under the evidence, that plaintiff at most had only such right as might accrue to him by reason of having without request liquidated the amount of mortgage debt against the home of defendant which right was unavailing.
    Appeal from District Court, Jim Wells County; V. W. Taylor, Judge.
    Trespass to try title by H. C. Engelking against August Mertens. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Walter Weaver and L. Broeter, both of Alice, for appellant. W. R. Perkins, of Alice, and C. C. Eorry, of Brownsville, for appellee.
   SWEARINGEN, J.

OH. C. Engelking, the appellant, brought this suit in the statutory form of trespass to try title, against August Mertens to recover lots Nos. 25, 26, 27, 28, 29, and 30 in block 69 in the town of Premont in Jim Wells county, Tex. August Mertens answered, “Not guilty.” Special issues were submitted to a jury, and judgment rendered in favor of appellee.

The facts which we consider of controlling influence are these: In 1909, R. P. Haldeman owned the property in controversy. Thereafter, in 1909, he executed a mortgage in the form of a deed to secure the payment of an indebtedness evidenced by notes amounting to $38,184, in which mortgage this property was included. Thereafter, in 1912, August Mertens acquired the said property, entered into immediate possession thereof as his home, and made improvements that increased the value of same by $3,000. Mertens com tinued to use the same as his homestead for about seven years prior to the trial of this cause. Eor the purpose of releasing from the Scott mortgage certain describe^ properties, including the lots here sued for, the heirs of G. R. Scott, in 1915, with the approval and consent of R. P. Haldeman and the various purchasers of lots in the town of Premont acting through a committee of which appellant was chairman, executed an instrument in the form of a deed to M. H. Meyers. Meyers had no personal interest in the said conveyance, but received same to enable him as trustee to release to each lot holder the property each had acquired. H. C. Engelking, for the purpose of enabling him to collect a prior debt claimed by him from Mertens for lumber sold, induced, by fraudulent representations, the said Meyers to release to Engelking this property which had- been acquired by Mertens. This release by the trustee, Meyers, was in the form of a deed to H. ■O. Engelking. Appellant knew the deed to Scott was a mortgage and that the deed to Meyers was for the purpose of releasing the mortgage lien held by G. R. Scott.

Appellant’s two assignments complain that the .judgment was error because the evidence showed a legal title in him from a common source, superior to the right of appellee. A number of pertinent propositions are presented.

We think both of the assignments should be overruled, because there is sufficient evidence to support the conclusion that the instrument executed by R. P. Haldeman to G. R. Scott was a mortgage. W. N. Seymour, a witness for appellant, testified:

The Texas Gulf Coast Company, in which name R. P. Haldeman had made contracts with purchasers, “could not meet” his “obligations, so far as delivering deeds to the town site is concerned. Parties who had built their homes on lots that had been designated * * * had no deed. The town site was mortgaged; the mortgage was held by the Scott estate. In order to secure deeds for these properties, the mortgage had to be satisfied. A committee was appointed by these lot- certificate holders to see if something could not be done to protect their homes.”

Appellant was chairman of this committee.

W. H. Meyers, who executed the .release in the form of a deed to appellant, testified:

“Ella D. Scott, Lucille S. Pope, and W. B. Pope * * * had held this (Mertens’ homo) and other property amounting to about 1,500 acres as security for notes signed by Mr. R. P. Haldeman, and agreed to release and convey certain lots to me upon payment of $8,250, and this understanding was satisfactory to them (the lot holders) after they were informed of the purpose and plans of the lot distribution.”

This mortgage was never foreclosed or changed into a title, but remained a mortgage. The evidence further shows that G. R. Seotfcidied leaving an estate and Indicates who were his heirs, but fails to show that there was no administration upon his estate, and also fails to show that there was no necessity for an administration. (From the evidence, therefore, the conveyance by the heirs of G. R. Scott to Meyers is not proven to have passed any right whatever. Laas v. Seidel, 95 Tex. 442, 67 S. W. 1015; Modern Woodmen of America v. Yanowsky, 187 S. W. 728. However, conceding for the moment that this conveyance did pass some right in and to the property described therein, a part of which were the lots in controversy, the evidence shows that this instrument was made by a mortgagee and not an owner of the fee, and the most that Meyers obtained was the right and'obligation to execute releases in the form of deeds of the various properties to the owners thereof upon the receipt of $8.50 per lot regardless of improvements that may have been made upon the properties. The evidence further shows that Meyers, authorized, by the instrument received by him, to release the property to the owners, through misrepresentations made to him by H. O. Engelking, executed a release, in the form of a deed, to H. O. Engelhing to Mertens’ homestead; Meyers, the grantor, believing and intending that Mertens would by said instrument have his property released from the G. R. Scott mortgage.

In this trespass to try title suit it was incumbent upon the plaintiff to recover upon the strength of his own title. The evidence shows that appellant received no title, but, at most, only such right as might accrue to him by reason of having, without request, liquidated the amount of a mortgage debt against the home of Mertens. If appellant acquired any right whatever by the instrument from Meyers, it certainly was not the fee, but only the right of a mortgagee. This right will not avail appellant in this form of suit. Zamora v. Vela, 202 S. W. 215 (not yet officially reported); Hume v. Le Compte, 142 S. W. 934; Loving v. Milliken, 59 Tex. 425.

The judgment is affirmed. 
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