Wynn v. Flannegan

• Decision Date: 01 January 1860
• Parties: W. B. WYNN, ADMINISTRATOR, v. J. W. FLANNEGAN.
• Court: Texas Supreme Court

25 Tex. 778

W. B. WYNN, ADMINISTRATOR,

v.J. W. FLANNEGAN.

Supreme Court of Texas.

1860.

The plaintiff suing to enforce a vendor's lien claimed by him upon a tract of two hundred and eighty acres of land, two hundred of which embraced the homestead tract of the husband and wife, defendants in the suit, his evidence of indebtedness consisting of a promissory note reciting on its face that it was given for the purchase money of the eighty acres not within the homestead portion of the tract; and a bond to make title to the whole of the tract executed by the husband and wife to a third party, and which was consistent with the contract evidenced by the note, also being in evidence; held, that parol testimony offered by the plaintiff to prove that by the agreement of the husband (the wife not being a party to it), the plaintiff should have a lien on the whole of the land, was inadmissible; first, because its effect was to vary the terms of the contract as shown by the note and title bond taken together; secondly, because it proposed to establish a lien upon land, not by showing such facts as would give rise to the vendor's lien, but by showing that the parties had agreed that other facts should give the plaintiff the same rights as if he were indeed the vendor of the whole of the land; and lastly, the testimony was inadmissible to affect the homestead rights of the wife, unless she had been a party to the agreement.

A vendor's lien upon land is not established by proof that parties agreed that one of them should have a vendor's lien upon certain land. Such a lien arises by operation of law where certain facts exist. If the facts do not exist, the vendor's lien does not arise.

Any other kind of lien upon land than the vendor's, such as a mortgage lien, must be evidenced by writing.

It seems that where the vendor of land causes a note given by the purchaser for the purchase money, to be made payable to another person, that it will carry with it the vendor's lien, the same as if it had been made payable to the vendor.

APPEAL from Rusk. Tried below before the Hon. C. A. Frazer.

Armstrong & Parsons, for the appellatn.

Benjamin Smither, for the appellee.

BELL, J.

This suit was instituted by J. W. Flannegan against one J. W. Ivey, and W. B. Wynn, and his wife, Sarah A. Wynn. The petition alleges that some years before the institution of this suit, Flannegan, the plaintiff, became surety for Wynn and his wife, that judgment was recovered against Wynn and wife and himself, and that he paid about three hundred and twenty-five dollars of said judgment, and was liable for the remainder, which amounted to about three hundred and eighty-five dollars. It is alleged that Wynn and wife, at the time judgment was rendered against them and Flannegan, were the owners of a tract of land containing two hundred and eighty acres, and that the execution which was issued upon the judgment against them and Flannegan, was levied on eighty acres of the said tract of land, that being the surplus of the tract over and above what Wynn and his wife were entitled to claim as their homestead. It is shown that Flannegan became the purchaser of the eighty acres of land at sheriff's sale. It is alleged that Wynn and wife, being desirous to pay Flannegan the amount which he had paid for them, agreed to sell the remaining two hundred acres of their land to J. W. Ivey, and did sell to Ivey, not only the two hundred acres of land owned by them, but also the eighty acres owned by the plaintiff, Flannegan. The petition then alleges that Ivey, in consideration of the sale to him of the two hundred and eighty acres of land, for the consideration of nineteen hundred and sixty dollars, executed to Flannegan the note sued on for seven hundred and forty-seven and ninety-three one-hundredths dollars, with the consent of Wynn and wife, and that the understanding of all the parties--Flannegan, Ivey, and Wynn and wife--was that the note for seven hundred and forty-seven and ninety-three one-hundredths dollars, made...