Byler v. Johnson

• Decision Date: 01 January 1876
• Citation: 45 Tex. 509
• Parties: A. BYLER v. W. R. JOHNSON ET AL.
• Court: Texas Supreme Court

45 Tex. 509

A. BYLER

v.W. R. JOHNSON ET AL.

Supreme Court of Texas.

1876.

APPEAL from Caldwell. Tried below before the Hon. Henry Maney.

On the 20th day of November, 1857, appellant sold the land in controversy to P. A. and Martha R. Swann, taking three promissory notes, for $875 each, for the purchase-money, due in one, two, and three years. These notes were set out in the deed from appellant to Swann.

The notes were not paid. About the time the last note became due the war began; and on the 10th day of February, 1866, the appellant brought his suit to foreclose his vendor's lien in Caldwell county, where the land is situated. The venue was changed to Gonzales county, and on the 14th day of October, A. D. 1868, a trial was had, and judgment rendered, foreclosing the vendor's lien.

In that case, the defendants, Swanns, plead general demurrer, general denial, and the statute of limitations, but said nothing about having sold the land to the defendants in this suit. The appellees were not made parties to that suit.

An order of sale issued, and on the first Tuesday in January, 1869, the land was sold by the sheriff of Caldwell county, at which sale the appellant (plaintiff in the original suit) became the purchaser, at $710.

On the 10th day of March, 1869, appellant brought this suit, in trespass to try title, against appellees, and, amongst other things, alleged the execution by his vendees of a conveyance to appellees, under which they went into possession before the suit to foreclose. On the first trial, appellant recovered judgment for the land and about $800 for rents and profits. That judgment was reversed by this court at its last term on questions not now before this court.

At the January term of the court in Caldwell county, another trial was had, and under instructions from the court to do so, the jury returned a verdict for appellees.

A motion was then made for a new trial, which the court refused, and from the judgment the appellant prosecutes this appeal.

The statement of facts shows that--

1. It was agreed between the parties that the title, both legal and equitable, was in appellant Byler on the 20th day of November, 1875, the date of his sale to the Swanns.

2. That appellant sold the land in controversy to P. A. and Martha R. Swann on that day, taking for the purchase-money three promissory notes, payable in one, two, and three years, for $875 each, which were set out in the deed of conveyance made to Swanns. No mortgage or deed of trust to secure purchase-money was shown.

3. Appellants then offered in evidence the transcript of the papers and proceedings in the case of Byler v. Swanns, from Gonzales county District Court, showing foreclosure of the vendor's lien on the land, order of sale, sale, and sheriff's return, showing Byler to be the purchaser. With this transcript the sheriff's deed was also offered in evidence, all of which was excluded on objections by defendants, for the reason that defendants, Johnstons, were not parties to the original suit.

4. Appellant then offered to prove the value of the rents and profits, as claimed in the petition, which, being objected to, was excluded by the court.

5. Appellees were then permitted, over the objections of plaintiff, to read a deed to them from the Swanns, dated in 1862, and filed for record in 1863.

6. Appellant offered to prove by the defendant, W. R. Johnston, on cross-examination, that defendants knew, at and before their purchase of the land in controversy, that the purchase-money due Byler from Swann, for the payment of which the land was bound, had never been paid; and also that defendants knew of the pendency of the suit of Byler v. Swann, to foreclose his vendor's lien, long before judgment was rendered therein, and took no steps to make themselves parties to that suit. This evidence being objected to by defendants, the court excluded it.

7. The court charged the jury to find for defendants; which they did, and judgment was rendered accordingly. This charge is assigned as error; but no exception was taken for that cause.

8. The plaintiffs applied for a new trial on account of the several rulings of the court in the introduction and exclusion of evidence, and on account of this charge the refusal of this application for a new trial is also assigned as error.

L. G. Storey, for appellant.--We think the fee in this case remained in the vendor Byler, notwithstanding his deed to Swann, as he set out his three promissory notes given for the purchase-money in the deed, and retained his vendor's lien to secure their payment. This doctrine has been universally held by this court, and is discussed at length by Judge Hemphill in the case of Dunlap v. Wright, 11 Tex., 602-604;Howard v. Davis, 6 Tex., 174.

There seems to be quite a distinction between vendors' liens and mortgages--to secure the payment of borrowed money, for instance.

In the latter case the mortgagor retains the fee. In the former case the vendor stands in the attitude of a mortgagee, and yet he has and holds the fee until the purchase-money is paid, and the moment this is done the seizin will then, and not until then, be regarded as having been in the vendee from the date of his purchase. (See Dunlap v. Wright, 11 Tex., 603.)

Again, in this same case, Judge Hemphill says: “Whatever may be the effect of an ordinary mortgage to secure the loan of money or the right of parties thereto, yet where it is to secure the payment of the purchase-money and is executed simultaneously with the conveyance, the vendor has, until the money is paid or the mortgage foreclosed, the superior right to the land.” (Ib., 604.)

It will not be contended by counsel that appellees did not have notice, both actual and constructive, of the outstanding notes due Byler for the purchase-money when they bought the land of Swann. They are bound to take notice of that fact as recited in the deed from Byler to Swann. They also had actual notice.

Appellees are, in no sense of the word, innocent purchasers. To be such they must have had no notice of Byler's claim; they must have bought in good faith; they must have paid a valuable consideration. They had ample notice of our lien. They have not shown good faith by offering to pay off the lien, or in any other way. They are expecting equity of this court, without a plea upon which to grant it, and without offering to do equity by paying the purchase-money. If Byler had known that Johnston was a purchaser of the land from Swann when he brought his suit against the Swanns to foreclose his lien in 1866, Johnston would perhaps have been a proper party, but we contend they are not necessary parties. The only object in making them parties is to allow them to redeem the land, or to show some good cause why Byler's lien should not be enforced; and if so, under proper pleas, they would be allowed the same privilege in this suit; and having failed to avail themselves of this right, we think it an evidence of a want of good faith. (Hall v. Hall, 11 Tex., 548.)

By reference to the petitions in both suits, it will be seen that Byler was, on the 10th day of February, 1866, and is now, a resident of Fayette county, Texas, and never was a resident of Caldwell county. Having sold to the Swanns in 1857, and finding them occupying the land exclusively up to the date he brings his suit to foreclose, he is not chargeable with any notice whatever of Johnston's purchase, and the record discloses no such knowledge until Byler finds it necessary to bring this suit for trespass, on the 10th day of March, 1869; and in his petition alleges that he was in quiet and peaceable possession on the 5th day of January, 1869, when the defendants forcibly ejected him and took possession. Under such a state of facts, we think the law would require the defendants to tender the amount due Byler into court, under a plea claiming the right to redeem.

We understand this court to hold the doctrine that before one can demand equity of the court he must do equity; and as there could be no necessity in making the Johnstons defendants in the case of Byler v. Swanns, except to give them the right to redeem, we contend that under proper pleading by them they could have had the same equitable right enforced in this case. This right, however, could only be secured by a proper plea; it cannot be done under the plea of “not guilty,” or any other plea contained in this record. The right to redeem should be an “independent equitable right,” and “should be presented by proper averments.” (See Ayres v. Duprey, 27 Tex., 593.) And without such a plea on their part we could not be required to anticipate their desires and to ask a foreclosure as to them.

The strongest case in the Texas Reports in favor of the appellees, we think, is the case of Hall v. Hall, 11 Tex., 548, and we ask a careful consideration of that case by the court.

In that case the property was personal property, and known by the plaintiff to be in the hands of a subsequent purchaser, and the question of parties was raised in the same suit and not in a subsequent suit, as in this case.

But there is another case almost exactly like the one at bar, in which the question was raised, as here, in a subsequent suit, in which Judge Lipscomb delivered the opinion of the court, and we understand him to lay down this rule: That if C purchased land of B, knowing that the land was still liable for the purchase-money due A from B, and afterwards A brings suit against B to foreclose his vendor's lien, and fails to make C a party, yet if C knows the suit is pending, and fails to make himself a party and assert his right in that suit to redeem, he is thereby estopped, and cannot in a subsequent suit assert his right to redeem. (See Webb v. Maxan, 11 Tex., 678.)

Now let us apply this rule to the facts of this case.

1. Johnston bought of the Swanns with full notice that Byler's vendor's lien was retained and had never been discharged.

2. Johnstons knew of...