Faubion v. Rogers

• Decision Date: 22 June 1886
• Citation: 1 S.W. 166
• Parties: FAUBION v. ROGERS.
• Court: Texas Supreme Court

1 S.W. 166

FAUBION v. ROGERS.

Supreme Court of Texas.

June 22, 1886.

Appeal from Milam county.

Action to recover damages for breach of warranty of title to land. Judgment for plaintiff, and appeal therefrom by defendant.

Ford & Ford, for appellant. Sayles & Bassett and N. P. Garrett, for appellee.

WILLIE, C. J.

In the view we take of this case it will not be necessary to consider the various questions raised in the briefs of counsel. From the abstract of the petition in the case of Thompson v. Perkins, Phillips, and Faubion, found in the statement of facts, it appears that the sole object of that suit was to foreclose a vendor's lien on 1,063 acres of land sold by Thompson to Perkins and Phillips. Faubion was made a party, according to the allegations of the petition, because he was an incumbrancer upon the land, but it is apparent, from such portions of the record in that cause as are before us, that he was made a party defendant because he had purchased a portion of the land from Perkins and Phillips, and was in possession of it under that purchase when the suit was instituted. He was therefore not only a proper, but a necessary, party to the suit, in order that the title thus held by him, and the possession which he claimed thereunder, might be divested. No question was raised in the case between Faubion and his vendors as to the enforcement of the notes given by him for the 263 acres purchased of them. Such a question was of no importance, as Thompson was entitled to have his lien foreclosed no matter what defenses might exist against the notes given by Faubion to Perkins and Phillips. It was not a case, as between Thompson and Faubion, where a vendor was seeking a foreclosure of his lien, to which his vendee is allowed to plead a failure of the vendor's title as a bar to the collection of the purchase money. In such a case the title comes directly in issue, and there is no objection to allowing the defendant to call in the claimant of the superior title, and require him to assert or relinquish his claim to the land. Cooper v. Singleton, 19 Tex. 268. But this was a case where a vendor was seeking to foreclose his lien, and had made a subsequent purchaser from his vendee a party defendant. Such a purchaser, in possession, was a proper and necessary party to the suit to foreclose, in order to bind him by the judgment, and bar his equity of redemption. Having been brought in as such purchaser, he had no right to set up an adverse title in himself, and have that litigated and determined in the foreclosure suit. The only proper parties to a suit to foreclose a mortgage — and, of course, the rule holds good as to similar liens — are the mortgagor and mortgagee, and those who have acquired any interest from them subsequently to the mortgage. 2 Jones, Mortg. § 1440. As there is no privity between an adverse claimant who is a stranger to the mortgage and the estate, he cannot be made a party for the purpose of trying his adverse claim in the foreclosure suit. Id. §§ 1440, 1445; Pelton v. Farmin, 18 Wis. 223; Dial v. Reynolds, 96 U. S. 340; Croghan v. Minor, 53 Cal. 15; Gage v. Perry, 93 Ill. 179.

The appellant was brought in as a necessary party to the foreclosure suit because he had purchased from the mortgagor. He was not invited into the cause as the holder of an adverse claim....