Lynch v. Elkes

• Decision Date: 01 January 1858
• Citation: Lynch v. Elkes, 21 Tex. 229 (Tex. 1858)
• Parties: PARTHENIA LYNCH AND ANOTHER v. ROBERT M. ELKES.
• Court: Texas Supreme Court

21 Tex. 229

PARTHENIA LYNCH AND ANOTHER

v.ROBERT M. ELKES.

Supreme Court of Texas.

1858.

Where two notes are given for land falling due at different periods, it is not error to decree the land to be sold upon the first note coming due, to satisfy the vendor's lien.

Where land is purchased in the name of a married woman, and the notes of herself and husband are given for the purchase money, with a lien on the land, in a suit on the notes no other judgment should be rendered against her but a foreclosure of the lien. A judgment against her generally in such case is error without proof of benefit and advantage. Post, 507; 23 Tex. 625;24 Tex. 215;27 Tex. 96;29 Tex. 257.

Error from Brazoria. Tried below before Hon. J. H. Bell.

The plaintiff in error purchased a tract of land and gave her own and her husband's two several notes for the purchase money, with a lien on the land, falling due at different times. The first note falling due suit was commenced on it, and a judgment rendered on it against them and other indorsers, and a decree ordering a sale of the land to satisfy the lien.

P. MacGreal, for appellant.

Wharton & Terry, for appellees.

HEMPHILL, CH. J.

We are of opinion that there was no error in decreeing the sale of the land for the satisfaction of the vendor's lien. The payment of the purchase money of the land was by two distinct notes, and the vendor's lien on each was equivalent to a mortgage, subject to forfeiture on the failure to pay the notes or either of them. There was error,...