Briscoe v. Bronaugh

• Decision Date: 31 December 1846
• Citation: 1 Tex. 326
• Parties: ANDREW BRISCOE v. WILLIAM N. BRONAUGH
• Court: Texas Supreme Court

1 Tex. 326

ANDREW BRISCOE

v.WILLIAM N. BRONAUGH

Supreme Court of Texas.

December Term, 1846.

Appeal from Harris County.

It is a doctrine of the civil law and of the equity jurisprudence of the United States and of England, that a vendor has a lien upon the thing sold for the purchase money, without any special agreement for that purpose.

The vendee holds in trust for the vendor until the purchase money is paid, and this trust attaches to the land or thing sold, and follows it into the hands of subsequent purchasers with notice. [4 Tex. 10;24 Id. 238.]

This equitable mortgage exists in every case of sale where the money is not paid, unless otherwise agreed by the parties. Prima facie the lien exists, and it lies on the purchaser to show that the vendor agreed to waive it. [14 Tex. 318;19 Id. 497.]

Previous to the passage of our statute of frauds of January 18, 1840, a parol sale of lands, accompanied by possession, passed a title as valid and legal as a written conveyance.

Registration acts do not embrace equitable liens not evidenced by writing.

A purchaser with notice of a lien takes the estate, if at all, subject to the prior equity, and cannot set up his title against the person holding it, until he has first discharged the incumbrance.

It is a general rule that whatever is sufficient to put the party upon inquiry amounts in judgment of law, to notice. [ Post, 350; 24 Tex. 518;28 Id. 569.]

Lis pendens is constructive notice.

A sale pendente lite is a nullity as against the plaintiff in the suit.

Though fraud will not be presumed and must be proved, yet it may be proved by circumstantial or presumptive evidence. [15 Tex. 219;18 Id. 318.]

A fraudulent intent will in general be presumed, from the fact that the party conveying was indebted at the time the conveyance was executed.

Gross inadequacy of price naturally leads to the presumption of fraud, and although it would not under the English law be sufficient to avoid the sale, yet it would raise a strong presumption against it.

Inadequacy of price of half the value of the thing sold would, under the civil law, avoid the sale.

A question of fraudulent intent is one of fact to be submitted to the jury; and they are the judges of the weight and amount of evidence necessary to establish it.

Where a controversy consists chiefly of questions of fact, the objections to a verdict must be very cogent, to induce the court to grant a new trial.

It is not enough that it is not clear that the verdict is right; it must clearly appear that it is wrong, to induce the court to set it aside. [ Post, 340; 2 Tex. 323, 428, 490;4 Id. 89;5 Id. 492;7 Id. 556, 584;8 Id. 439, 468;15 Id. 401;16 Id. 94;19 Id. 58, 96;22 Id. 37;24 Id. 288, 508;28 Id. 16, 57, 185.]

The facts in this case are fully presented in the opinion of the court delivered by Mr. Justice Wheeler and Gillespie.

R. C. Campbell, for appellee.

Buckley, for appellant.

WHEELER, J.

This was an action brought by the appellant to recover of the appellee the possession of a lot with its improvements, in the city of Houston.

A verdict and judgment thereon having been given for the defendant, the plaintiff appealed, and now contends that the verdict was contrary to law and the evidence in the case, and that the judgment should therefore be reversed.

The history of the derivation of title, as disclosed by the record, appears to be that the original proprietors, the Houston Town Company, sold the premises to one Woodruff, who sold to the present defendant by parol sale and put him in possession; that the defendant, in the spring or summer of 1838, sold to one George C. Briscoe, then in possession as his tenant; that one thousand dollars of the price remained unpaid to the defendant; and that the title was made by Woodruff to George C. Briscoe.

The plaintiff claimed by purchase under a deed of trust from George C. Briscoe, bearing date the 2d day of May, 1839.

From the statement of facts it apears that the defendant's vendee, George C. Briscoe, refused to pay him the $1,000 of the purchase money for which he (Bronaugh) brought suit at the fall term, 1838, of the Harris district court, and at the spring term following, obtained judgment. This judgment bears date on the 16th day of May, 1839. The property now in controversy was levied on and sold under an execution issued upon this judgment in September, 1839, and the defendant, Bronaugh, became the purchaser.

The deed of trust under which the plaintiff claims purports to convey that part of the premises now in controversy to one Harris, who is appointed by the deed trustee with power to sell upon a certain contingency specified in the deed, after having given ten days' notice. It recites among other matters that the grantor, Briscoe, “has this day given to Andrew Briscoe a promissory note for the sum of $422,” and provides that the proceeds of the sale when made by the trustee shall be applied to the payment of this note. The contingency mentioned in the deed having happened, the trustee proceeded, on the 26th day of May, 1840 (having given the required ten days' notice), to sell the premises according to the terms of the deed; and the present plaintiff, Andrew Briscoe, became the purchaser for the consideration of two hundred and seventy-five dollars.

It further appears that the plaintiff, Andrew Briscoe, acted as agent for George C. Briscoe in the absence of the latter the fall and winter of 1838, and that as such agent he claimed for him the continuance of a cause in which he was defendant at the fall term, 1838, of the Harris district court; at which court also the cause of the present defendant against the said George C. Briscoe for the one thousand dollars of purchase money was pending and continued.

During the pendency of the present suit Mrs. Sarah A. Bronaugh, wife of the defendant, intervened, claiming the premises in litigation as her own separate property. But as in our opinion her evidences of title were properly rejected by the court, we have dismissed them from our consideration.

The defense set up by the answer is, that the defendant was creditor of the plaintiff's vendor, George C. Briscoe, for a part of the price at which the latter had purchased the premises; and that he (the defendant) had a lien therefor upon the premises subsisting when the plaintiff's title had its origin. That the plaintiff purchased with notice of the defendant's lien and with the intent to defraud and deprive him of his rights accruing in consequence of said debt and lien; and that the defendant having had his debt for the purchase money ripened into a judgment against the said George C. Briscoe, and having purchased the premises at sheriff's sale in satisfaction of this judgment, his is the better right and title to the premises.

To reverse the judgment, it is insisted for the plaintiff:

That he is entitled to recover the premises by virtue of his elder legal title.

That the defendant had no lien upon the property, or if he had, that there is no evidence to charge the plaintiff with notice actual or constructive, or with any intent to defraud the defendant; and that his vendor, George C. Briscoe, in making him beneficiary in the deed of trust had but exercised his legal right of preferring one creditor to another.

It will be conceded that the plaintiff cannot recover upon the weakness or want of title in his adversary; and that before he can dispossess the defendant he must show in himself a valid legal title. But as his is the elder legal title, it must prevail unless overborne by some prior equity in the defendant, or tainted with fraud; and in reference to its sufficiency and validity in these respects, it becomes material to inquire:

1st. Had the defendant at the period of the plaintiff's acquisition of title a lien upon the premises?

2d. Is the plaintiff's title affected with notice of this prior equity? or,

3d. Is it affected with fraud?

The respective claims of the parties had their origin in facts which transpired before the common law became the rule of decision in this country; and when the law of Spain (or the civil law as in force in that country and Mexico) was the law of the land, except so far as modified by our own legislation.

1st. That “a vendor has a privilege (lien) over the thing sold, that is to say, the right of requiring the sale of it in order to obtain his payment” is a doctrine recognized by the courts of Louisiana as existing in the laws of Spain. 2 Mart. 209. And we are told by distinguished jurists that the doctrine of the vendor's lien for his purchase money, as recognized in the equity jurisprudence of England and the United States, was derived from the civil law. 4 Kent, 152, 153, note (d.); 2 Story Eq. 642. “There is,” it has been said, “a natural equity that the land should stand charged with so much of the purchase money as was not paid, and that without any special agreement for that purpose.” Vern. 267; 4 Kent, 152. It is founded upon an implied trust between the vendor and purchaser. The latter is regarded as the trustee of his vendor, receiving the contract or conveyance, to hold it for the use of the vendor until the purchase money is paid. The trust attaches to the land and follows it into the hands of a subsequent purchaser with notice, upon the universally received doctrine that he who purchases a trust property with notice of the trust is bound by it. This equitable mortgage exists in every case of sale where the money is not paid, unless it be otherwise agreed by the parties either expressly or by acts showing that the lien was not intended to be retained. Ohio Cond. 407. Prima facie the lien exists and it lies on the purchaser to show that the vendor agreed to waive it. 1 Ham. 318; 4 Kent, 152; 2 Phil. Dig. 711, sec. 207; 2 Story Eq. 638; 1 Johns. Ch. 308.

This is the well settled doctrine of the English courts. It is recognized by both the common and the civil law. It has been asserted and maintained almost...