Lindsey v. Hart

• Decision Date: 21 October 1925
• Docket Number: (No. 515-4191.)
• Citation: 276 S.W. 199
• Parties: LINDSEY v. HART et al.
• Court: Texas Supreme Court

276 S.W. 199

LINDSEY v. HART et al.

(No. 515-4191.)

Commission of Appeals of Texas, Section B.

October 21, 1925.

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

Suit by Robert Lindsey against Max W. Hart and others. A judgment of the Court of Civil Appeals (260 S. W. 286), affirmed an order of the district court dissolving a temporary injunction, and plaintiff brings error. Affirmed in part, and reversed and rendered in part.

Seale & Denman, of Nacogdoches, and Harris & Harris, of Austin, for plaintiff in error.

S. W. Blount, of Nacogdoches, for defendants in error.

STAYTON, J.

The disposition of the case is dependent upon the effect, as against Max W. Hart, of a judgment of foreclosure that was had prior to the present litigation. The steps of the former trial and of this last one will be stated in the order of their occurrence.

Robert Lindsey and others brought a suit against persons to whom they had sold some land counting upon the promissory notes given as part of the consideration and the vendor's lien retained in the deed for their security. They joined Max W. Hart as a defendant, alleging that their vendees had conveyed the land to him. They prayed recovery upon the notes and foreclosure, "as well as for title and possession of said land and against the defendant Max W. Hart," for order of sale and for general relief.

After a trial the court entered a judgment reciting that the parties appeared, giving recovery to one of the plaintiffs upon the notes as against the defendants who had signed them, foreclosing the vendor's lien against the land, and decreeing that order of sale issue, as required by statute. The judgment continued:

"And it is further ordered that said officer place the purchaser of said property in possession thereof within 30 days after the day of the sale. And said order of sale when issued shall have the force and effect of a writ of possession."

It is contended that this was not a final judgment because it did not mention the defendant Hart. But, in the light of the petition, the necessary implications of it were that the personal judgment was against the defendants who were named in that connection, and against whom alone that recovery was prayed, and the foreclosure was against all of the defendants, including especially Hart, who was the alleged owner of the property. Judgments are to be liberally construed so as to read into them their necessary implications and make them serviceable instead of useless. Trammell v. Rosen, 106 Tex. 132, 157 S. W. 1161.

It is claimed by plaintiff that the petition was not only for foreclosure but also for possession before sale as against defendant Hart, and that the judgment had the effect of awarding such possession.

Any sense of that nature that the petition might have had was ineffective on its face, whether general demurrer was urged or not. For, in a suit to foreclose a vendor's lien upon simple allegations that a particular defendant is a vendee of the original vendees, the only recovery that can be had against that defendant is foreclosure and sale. Such an action from the standpoint of possession is exactly like that of a mortgagee who is out of possession. Until the order of sale is executed there is no right of possession in the plaintiff, and only then if he becomes the purchaser. Stephens v. Motl, 82 Tex. 81, 18 S. W. 99; Willis v. Sommerville, 3 Tex. Civ. App. 509, 22 S. W. 781; Burson v. Blackley, 67 Tex. 5, 2 S. W. 668; Gulf Pipe Line Co. v. Lasater (Tex. Civ. App.) 193 S. W. 773, at page 782.

This judgment does not purport to award possession before vendue. On the contrary, it follows the statutes regarding foreclosure of liens, and as regards possession is to be construed as having their effect and the only lawful effect, which is that the purchaser — not the plaintiff, unless he make the successful bid — shall be entitled to possession, and shall be given that relief by the sheriff or constable. R. S. arts. 2000, 2001.

If the petition asked further remedy in that respect, it was improper, and the judgment, by not mentioning it, denied it. Trammell v. Rosen, 106 Tex. 132, 157 S. W. 1161.

To resume account of the occurrences leading up to and coming about in the present suit, which is the second suit: According to the allegations of plaintiff's petition,...