Henderson v. Hall

• Decision Date: 27 May 1943
• Docket Number: No. 11538.,11538.
• Citation: 174 S.W.2d 985
• Parties: HENDERSON v. HALL et al.
• Court: Texas Court of Appeals

174 S.W.2d 985

HENDERSON v. HALL et al.

No. 11538.

Court of Civil Appeals of Texas. Galveston.

May 27, 1943.

On Rehearing September 30, 1943.

Appeal from District Court, Trinity County; E. T. Murphy, Judge.

Trespass to try title by J. F. Hall and others against George H. Henderson to recover title to and possession of four tracts of land. Judgment for plaintiffs, and defendant appeals.

Affirmed in part and reversed and rendered in part.

Fountain, Cox & Sandlin, S. E. Wilcox, Jr., and Joyce Cox, all of Houston, and Wiley B. Thomas, of Groveton, for appellant.

Crow & Chessher and C. C. Chessher, all of Groveton, for appellees.

MONTEITH, Chief Justice.

This is an action in trespass to try title brought by appellees, J. F. Hall et al., to recover from appellant, George H. Henderson, the title to and possession of four tracts of land out of the J. Ceballos League in Trinity County, Texas, aggregating 208.7 acres.

In a trial before the court judgment was rendered that appellees recover of and from appellant the title to and possession of the land in controversy. Findings of fact and conclusions of law were filed by the trial court.

The record shows that: By deed dated March 20, 1928, W. H. Morrison conveyed to Lang Smith three of the tracts of land in controversy, aggregating 162.5 acres. A vendor's lien was retained in said deed to secure a purchase money note for the sum of $700 executed by Lang Smith and payable to W. H. Collins. By deed dated March 30, 1928, Lang Smith conveyed said three tracts of land to M. R. Driskell. A vendor's lien was reserved in this deed to secure the payment of the $700 note executed by Lang Smith and payable to W. H. Collins, and an additional note for the sum of $400 executed by M. R. Driskell and also made payable to W. H. Collins. On the same date M. R. Driskell and his wife, Minnie Driskell, executed a deed of trust on a 46.2 acre tract of land out of the said Ceballos Survey to additionally secure W. H. Collins in the payment of said two notes. By instrument dated March 9, 1930, W. H. Collins transferred and assigned this deed of trust lien on said 46.2 acres of land to appellee, J. F. Hall. It was recited in said instrument that said notes of $700 and $400 had been transferred and assigned, without recourse, to B. S. Brent, and by B. S. Brent, without recourse, to J. F. Hall. There is no assignment of the superior title to said three tracts of land, or the vendor's lien by which they were secured, to J. F. Hall.

By deed dated April 25, 1930, M. R. Driskell and his wife conveyed to appellant, George H. Henderson, a 15/16 mineral interest in the land in controversy. A correction deed was afterwards executed by the Driskells correcting the description of the land conveyed and conveying to appellant a 7/8 interest in the minerals in and under the land in controversy.

On January 2, 1932, for a recited consideration of the cancellation of said two notes for the $700 and $400 above referred to, on which the sum of $1,115.84 was found by the trial court to be due, the Driskells conveyed the land in controversy to appellee, J. F. Hall. J. F. Hall later conveyed the three tracts aggregating 162.5 acres to appellees, Charles I. Vermillion and wife.

Thereafter, on May 18, 1942, appellee filed this action in trespass to try title to recover of and from appellant, George H. Henderson, the title to and possession of the land in controversy.

Appellant answered by general denial and a plea of not guilty, claiming a 7/8 interest in the minerals in and under said land. He specially pled the four years statute of limitation. In the alternative he alleged that he had a vested interest in the land and that appellees' interest constituted only a lien thereon. He sought in the alternative a foreclosure and sale of said land subject to his claimed interest therein, and an order that his mineral interest therein be sold only in the event said foreclosure sale did not bring a sufficient price to satisfy appellee, J. H. Hall's, indebtedness.

The controlling question presented in the appeal is whether the holder of vendor's lien notes, who is neither the original vendor in the deed in which the lien was retained, nor the owner of the superior title to the land, who had taken a conveyance to said land from the original grantee for a recited consideration of the cancellation of the indebtedness for which the lien was given, may thereafter, in a trespass to try title action, recover from a purchaser of a mineral interest in said land from the original vendee.

It has been uniformly held by the courts of this state that the mere assignment of a purchase money note does not carry with it the vendor's superior title to the land by which it is secured, and that accordingly the assignee thereof cannot compel the vendor to transfer the legal title to him or to assert it for his benefit (43 Tex.Jur., pp. 285, 286), and that an assignee as such has no rights other than the right to collect the debt and enforce the lien. He does not occupy the position of the original vendor. Thus he has no title to the property, unless he acquires it by becoming a purchaser at a sale on foreclosure of the lien. Nor has he any right to the possession of the property prior to such time as he may purchase it on foreclosure sale. It follows that the assignee has no right to rescind the contract of sale, to take possession of the property, or to recover it, on default of the purchaser in the purchase money. 43 Tex.Jur., pp. 288, 289.

In Vol. 43, Texas Jurisprudence, page 393, it is held that: "An action to recover property from a purchaser must be brought by the holder of the superior title, that is, the vendor or his transferee. It is not properly brought by a mere holder of a vendor's lien note."

In the early case of Russell & Seisfeld v. Kirkbride et al., 62 Tex. 455, the Supreme Court, speaking through Judge Stayton, said: "Nor does the assignee or indorsee of a note given for land, by the fact that he becomes the holder of a note secured by lien, acquire any title or possessory right to the land for which the note was given. In such case the lien which the vendor had to secure the note, and the right to enforce it, passes with the note to any one who becomes its legal holder. This, and no more, is all the right which passes to the holder of the note by its transfer to him. Baker v. Compton, 52 Tex. [252], 262."

Hamblen et al. v. Folts & Walsh, 70 Tex. 132, 7 S.W. 834, 835: "* * * and it is equally as well settled that the title to the land does not pass by an assignment of the note, and for that reason the assignees cannot recover possession of the land under any circumstances. If a vendor, under an executory contract, has assigned the purchase-money notes, he holds the legal title to the land in trust for both the vendee and assignee of the notes, or for whoever may become ultimately entitled to the land."

In Stephens et al. v. Matthews' Heirs, 69 Tex. 341, at page 344, 6 S.W. 567, at page 569, Judge Stayton said:

"The indorsee or assignee of such a note, when barred by limitation, has neither a right in or to the land for which it was given, nor a right to collect the note, if its maker interposes the plea of limitation. His right in such case is gone.

"The vendor of land sold on a credit, when an express lien is reserved, is held to retain the legal title, and he may enforce payment of the purchase money by a sale of the land under decree; or, in the absence of equitable considerations forbidding it, he may cancel the executory contract of sale; but an indorsee or assignee of one or all the purchase-money notes has no right to cancel the contract of sale or to recover the land in default of payment of the purchase money. His sole right is to have the land sold and its proceeds applied to the satisfaction of the purchase-money notes held by him * * *."

In Farmers' Loan & Trust Co. v. Beckley et al., 93 Tex. 267, 54 S.W. 1027, 1029, opinion by Justice Brown, action was on various theories by the holder of the vendor's lien notes. The action was held to be barred. "The plaintiff had no right to recover the land, to have the superior title divested out of the original vendors * * * nor to require them to assert the legal title to the land for its benefit. * * * The vendor holds the legal title to the land in trust for the assignee as well as his vendee."

After quoting from Stephens v. Matthews, at pages 273, 274 of 93 Tex., at page 1031 of 54 S.W., the Court says: "If the assignee acquires no interest in the land, then it cannot be true that the original vendor holds the legal title in trust in the sense that the assignee can enforce that title for his own benefit, because, if the assignor is trustee and the assignee is beneficiary, the latter must have an interest in the thing to which the trust relates. If he has no interest in the subject to which the legal title attaches, he is not the beneficiary of a trust embracing that subject. Under our system the beneficiary in a trust may enforce his right by a direct action in his own name, especially if the trustee should refuse to act; but in this character of case it has been uniformly held that the assignee of a...