Farmer v. Simpson

• Citation: 6 Tex. 303
• Parties: FARMER v. SIMPSON.
• Decision Date: 01 January 1851
• Court: Supreme Court of Texas

6 Tex. 303

FARMER

v.SIMPSON.

Supreme Court of Texas.

1851.

Where the plaintiff sued on a promissory note of the defendant, alleging that the note was given in part for the purchase of land, to convey which the plaintiff had given the defendant his bond and prayed for an enforcement of his vendor's lien by a sale of the land to discharge the note: Held, That it was not competent for the plaintiff to prove the sale by parol evidence in the first instance; that he should have notified the defendant to produce the bond, and if he had failed to produce it or if it had been shown to be lost or destroyed he might then have proved by parol that the note was given for the purchase-money of the land.

Although a judgment against a garnishee which has not been satisfied is not a complete defense, pro tanto, against the claim of his original creditor, yet such judgment may be pleaded for the purpose of obtaining protection against being required to pay the same debt twice. (Note 55.)

Where a judgment was obtained against the vendee, as garnishee by a creditor of the vendor, and execution was levied upon the land: Held, That as between the vendor and vendee the former did not waive his lien by bidding at the sale.

A homestead is not acquired until the title to the land on which such homestead is established is acquired, or at any rate until the party is in condition to demand title; and all liens acquired before the homestead has been established must be raised, or it will be subject to a forced sale for the satisfaction of such liens. (Note 56.)

Error from Rusk. This suit was brought by the defendant in error on a note of hand, a part of the consideration of a sale of land by Simpson to Farmer, and praying to enforce the vendor's lien on the land by a sale of the land, to satisfy the note. The plaintiff alleged that he had given the defendant a bond for title. There was another suit pending at the same time between the same parties for enforcing the vendor's lien on the same land, in satisfaction of a judgment previously obtained by Simpson against Farmer, on two other notes given by Farmer, which, with the one sued on, constituted the amount for which the land had been sold. The two suits were consolidated. The defendant answered by a general denial of the truth of the petition, and further, that a judgment had been obtained against Simpson, at the suit of one Austin, for two hundred and thirty-six dollars sixty-six cents, and for eighty-two dollars and eighty-eight cents, costs, in May, 1849; that execution had been sued out on that judgment and had been returned no property found; that Austin had then garnisheed the defendant, Farmer, as the debtor of Simpson; and on his answer judgment had gone against him in favor of Austin for his judgment, debt, and costs, amounting to four hundred and fifty dollars, on which judgment execution issued and was levied on the land purchased by Farmer from Simpson; that it was offered for sale and bid off by Simpson at five hundred dollars, but that he failed to make payment, which appeared by the sheriff's return, and further, pleaded a waiver of the lien of the vendor by bidding at the sale as mentioned at the former plea, and that the homestead of his family was on the land on which the lien was attempted to be enforced, and insisted on its exemption from forced sale.

To the two pleas setting up the judgment on the garnishment and the waiver of the lien of the vendor an exception was taken by the plaintiff and sustained by the court. There was a verdict for the plaintiff, on which the court entered a judgment and decree in substance as follows: that the plaintiff's exception to the two last pleas of the defendant be sustained, and that the land be sold in satisfaction of the plaintiff's former judgment and also in satisfaction of the judgment on the note sued on in this suit.

There was a bill of exception, signed by the presiding judge at the request of the defendant, which, by the agreement of the counsel, as appeared from the record, was to be taken as a statement of the facts. It showed that the note sued on was produced by the plaintiff; that the plaintiff then proved by the sheriff that when he served the writ on the defendant, he, the defendant, said the note sued on in the writ was a part of the purchase-money for the land he, the defendant, then lived on. The defendant objected to the reading of the note and to the proof made by the sheriff, but the objections were overruled. It was also proven by the evidence of a witness that the land the witness lived on was the same described in the plaintiff's petition as the land sold by the plaintiff to the defendant. The plaintiff proved by another witness that the defendant admitted to him that the notes on which the judgment had been rendered in the previous suit were given for the land on which defendant Lived. Objected to by the defendant. Objection overruled. The plaintiff alse gave in evidence the judgment obtained by him against the defendant, Farmer. The defendant requested the court to charge the jury that the evidence as stated was insufficient to authorize them to find the land described in the plaintiff's petition, subject to the lien alleged, and that they must find for the defendant; which charge the court declined to give, but charged the jury that if they believed the evidence, it was sufficient to authorize them to find the land subject to a forced sale. To the refusal to give the charge asked and to the charge given the defendant excepted.

W. W. Morris, for plaintiff in error.

I. A seizure by the sheriff of personal property of value sufficient is a satisfaction of the execution. (Webb v. Bumpass, 9 Ala. R., 201; Campbell v. Spence, 4 Id., 543; Young v. Read, 3 Yerg. R., 298.) It is no answer to say that Simpson failed to comply with the terms of his bid. Farmer cannot be damnified by the default of Simpson. (Dall. Dig., 91.) Simpson being grossly in default can claim nothing. The sheriff being in default is liable to Austin to the amount of his judgment, it being satisfied.

II. The plaintiff's right is attacked on another ground. The third plea alleges a waiver of his lien. This may exist without a satisfaction of the debt. He claims in virtue of a general lien, which is defined to be neither jus in re nor jus ad rem, but a mere right to charge the land to the extent of his debt. This right is subject to be waived or lost by the laches of the party or by security on the claim. (Equity Dig., vol. 2, p. 201, sec. 15; Jackson, ex. dem., v. Spence, 13 Johns. R., 533.) One having a lien who stands by and silently permits the subject-matter of his claim to be sold thereby waives his right. How much stronger is the case at bar, Simpson himself attending the sale and actually purchasing the property relying on the sheriff's title for his demand? (Equity Dig., vol. 2, p. 201, sec. 15.) The lien being waived or satisfied lets in the homestead claim to the extent of such bid or satisfaction. Simpson's lien is merged in his purchase. (2 Stark Ev., 415.)

III. The bill of exceptions discloses error. To enforce the vendor's lien for the purchase-money a contract must be proved within the statute of frauds. A contract is the very foundation of the lien. The note and judgment were not sufficient evidence of such contract. The rule is, the writing must in itself show the terms of the contract. (Sugd. on Vend.,...