Flanagan v. Cushman

• Citation: 48 Tex. 241
• Parties: J. W. FLANAGAN v. H. M. AND O. B. CUSHMAN.
• Decision Date: 01 January 1877
• Court: Supreme Court of Texas

48 Tex. 241

J. W. FLANAGAN

v.H. M. AND O. B. CUSHMAN.

Supreme Court of Texas.

1877.

APPEAL from Rusk. Tried below before the Hon. A. J. Booty.

December 6, 1870, at Henderson, in Rusk county, Webster Flanagan, H. M. Cushman, and C. T. Garland had the following transactions: Garland held a note on Cushman for a tract of land on which was due $3,823.13 gold. This sum Flanagan furnished and paid to Garland, who at the time executed a deed for the land to Cushman. Cushman, then residing upon the land with his family, executed his note to Flanagan for the money advanced, recognizing in the note that the vendor's lien on his homestead existed, to secure the note; and executed a trust deed to Flanagan for the land, to secure the note.

Webster Flanagan assigned the note and trust deed to J. W. Flanagan. R. W. Flanagan, as agent for the holder of the note and mortgage, made an ineffectual effort to enforce the trust by sale, and the land was by him deeded to J. W. Flanagan.

J. W. Flanagan brought suit in the ordinary form for trespass to try title against Cushman, and in another suit sought judgment against Cushman on the note, and an order enforcing the trust by sale. These suits were consolidated. Cushman and wife interposed their claim for 200 acres, including their residence, as homestead, and pleaded not guilty.

On the trial, no jury being demanded, the court held the sale by R. B. Flanagan void; rendered judgment for the amount due on the note; allowed homestead rights to Cushman and wife, but disallowed their selection as inequitable; appointed commissioners to lay out 200 acres, including improvements, for the homestead; ordered sale of the residue.

The plaintiff appealed. The facts in evidence were--

1. The promissory note of Cushman to Webster Flanagan or bearer, reciting, “for which he holds a lien on my homestead and land on which I live,” of date December 6, 1870.

2. Mortgage, with power to sell, by Cushman to W. Flanagan, of same date, for the land, to secure the note, reciting that the note was “given for money borrowed of him to pay the balance of the purchase-money due” on it.

3. Deed from Garland to Cushman for same land, acknowledging full payment.

4. Plaintiff offered to prove, by Webster Flanagan, that the amount of the note was paid by him to Garland, as a part of the purchase-money due from Cushman to Garland; and at the time of the execution of the note and mortgage, and the payment of said money to Garland, it was distinctly understood by said Cushman, Garland, and Flanagan, that the lien for the purchase-money for said land, then held by Garland, should be retained by Flanagan; and the intent and meaning of the transaction was, that Flanagan was to be subrogated to all the liens and rights of Garland, and be protected as such. This was excluded.

5. It was admitted, that on December 6, 1870, at the date of the mortgage and note, Cushman and his wife and family resided on the land.

James H. Jones, for appellant, cited Eppinger v. McGreal, 31 Tex., 147;Dunlap v. Wright, 11 Tex., 597;Baker v. Clepper, 26 Tex., 634;Monroe v. Buchanan, 27 Tex., 241;Peters v. Clements, 46 Tex., 114;Wright v. Wooters, 46 Tex., 383;Ellis v. Singletary, 45 Tex., 27;Farmer v. Simpson, 6 Tex., 303.

W. W. Morris, also for appellant.

Martin Casey, for appellees, cited 1 Story's Eq. J., secs. 112, 113, 114, 115; Wynn v. Flannegan, 25 Tex., 778; Paschal's Dig., art. 1451; Bailey v. Harris, 19 Tex., 108;Mackey v. Wallace, 26 Tex., 526.

MOORE, ASSOCIATE JUSTICE.

It cannot be questioned that it has been held by this court, from its first organization, that the vendor of land has an equitable lien upon it for the unpaid purchase-money, unless such lien has been expressly or impliedly waived or abandoned. (Briscoe v. Bronaugh, 1 Tex., 326.) It is said to be “a natural equity that the land shall stand charged with so much of the purchase-money as” remains unpaid, without any special agreement to that effect. (Id.) It must also be now regarded as settled, in this State, that the transfer or assignment of the debt carries the lien or security for its payment, unless it is shown that such was not the intention of the parties. (Moore v. Raymond, 15 Tex., 554;Murray v. Able, 19 Tex., 213;McAlpin v. Burnett, 19 Tex., 500;White v. Downs, 40 Tex., 225;Cordova v. Hood, 17 Wall., 1.) Though the taking of personal security, (a chattel mortgage, assignment of collaterals, or a mortgage on other lands,) if unexplained, is evidence of an implied waiver of the vendor's lien,--or, to speak more accurately, where other security than the land is contracted for,--equity does not infer that the vendor is entitled to a different and additional security from that stipulated for. (35 Tex., 689.) But the presumption of abandonment, or waiver of the equitable lien, from taking the note or bond of the vendor, with other security for their payment than the land, is open to rebuttal by evidence that such was not the intention of the parties. (Ellis v. Singletary, 45 Tex., 27.)

If the purchase-money is unpaid, it will not be presumed that the lien is waived or abandoned, if, in view of the entire transaction, it appears that it was not the intention to release the land and rely upon other security. It is therefore said: Taking a mortgage upon the land, to secure the purchase-money, will not have this effect. “The question,” says Walker, J., in the case of Wasson v. Davis, 34 Tex., 159, “is not whether the vendor relies upon his lien, but whether he relies upon the particular estate sold, for his money. If he intends to rely on the estate, the law gives him the equitable lien, and it would not be fair to divest the lien, if he shows only a purpose to strengthen and not to abandon it. Courts look to the fact of the lien, not to the form; equity pursues the substance, not...