Orme v. Roberts

• Decision Date: 01 January 1870
• Citation: 33 Tex. 768
• Parties: L. ORME AND WIFE v. H. ROBERTS AND ANOTHER.
• Court: Texas Supreme Court

33 Tex. 768

L. ORME AND WIFE

v.H. ROBERTS AND ANOTHER.

Supreme Court of Texas.

1870.

1. In this case the court cites and approves the rulings in Briscoe v. Bronaugh, 1 Tex. 326, relating to the vendor's lien, constructive notice and lis pendens.

2. A purchaser of land at sheriff's sale, who bought for the purpose of securing a pre-existing judgment in his own favor, and who paid for the land by a credit of his bid upon his judgment, is not a bona fide purchaser for value, in legal contemplation, inasmuch as he parts with no consideration on the faith of his purchase. Blankenship v. Douglas, 26 Tex. 225, and Ayres v. Duprey, 27 Tex. 594, cited and approved in this connection.

3. The fact that such a purchaser had not, at the time his judgment was obtained, any notice, actual or constructive, that his debtor had not paid for the land, will not, it seems, enable him to resist the enforcement of the vendor's lien against the land; and this, notwithstanding that the holder of the lien had made an absolute conveyance of the land in fee to the judgment debtor, without reservation of his lien. But it is to be noted that suit for enforcement of the lien was pending at the time the execution sale was made, and actual notice of the lien was given on the day of sale.

APPEAL from Bowie. Tried below before the Hon. A. H. Latimer.

This was a suit instituted in January, 1867, by the appellants against Henry Roberts, to recover some thirty-one hundred dollars and interest, alleged to be due from the defendant, by a note given in 1865, for the purchase money of a tract of land bought by him in 1857, from the plaintiffs. An enforcement of the vendor's lien was prayed for.

At the fall term, 1868, W. E. Massenberg, one of the appellees, intervened in the suit, alleging that he was the owner of the land by purchase at execution sale made on the first Tuesday in July, 1868, by virtue of a judgment recovered in the fall of 1866 by Norwood & Massenberg against the defendant Roberts. The intervenor prayed to be quieted in his title as against the plaintiffs.

The land in question was conveyed by the plaintiffs to Roberts in December, 1857, by a deed absolute upon its face. The other facts of the case deemed material by this court are stated in the opinion.

The judgment below was in favor of the intervenor so far as the land was concerned; but a personal judgment against Roberts was rendered in favor of the plaintiffs. They appealed in consequence of the denial by the court of the lien claimed by them.

It may be remarked that the suit was brought by Orme and wife for the use of Talbot, Patton & Co.

B. W. Gray and Moore & Shelley, for the appellants.

W. B. Wright, for Massenberg. The attention of the court is especially invited to the case of Ayres v. Duprey, 27 Tex. p. 605, in which the court, in an able and close analysis of our registration laws, say that they not only protect innocent purchasers at execution sales, but also special lien creditors. See also Pas. Dig. p. 834, art. 4983, and p. 836, art. 4988.

The statement of facts shows that at the time that the judgment lien of Norwood and Massenberg attached to the tract of land they had no notice, either actual or constructive, that Loyd Orme or Talbot, Patton & Co. had any lien whatever upon said tract of land in controversy; and the lien thus attaching was superior to the lien set up by the appellants afterwards; and Massenberg purchasing under this lien has of course a superior title to the land, so far as appellants are concerned. See 2 Story, Eq. Jur. § 1217; McAlpine et al. v. Burnett et al. 23 Tex. p. 649.

Loyd Orme and wife, when they sold the tract of land to Henry Roberts, in 1856 or 1857, executed to them a clear deed, acknowledging in full the payment of the purchase money, and said deed was shortly afterwards recorded in Bowie county in the proper office.

Now, suppose that instead of Norwood & Massenberg having taken a judgment lien in October, 1866, they had taken a mortgage from Roberts to secure their debt on the tract of land in controversy, and in order to find out whether or not Roberts had paid for the land, they had examined the county records and discovered by the face of the deed that the purchase money had been paid in full, or acknowledged to have been paid by Roberts, and up to that time they have had no actual notice to the contrary, who ought to suffer or lose? Who was it that caused the injury? Why, Loyd Orme and wife; and as Talbot, Patton & Co. “stand in the shoes” of Loyd Orme and wife, they must lose. Because the judgment lien of Norwood & Massenberg is but a legal mortgage on all the real estate belonging to Roberts situated in the county of Bowie. See 1 Story, Eq. Jur. 3d ed. § 390.

The appellants no doubt will argue that on the day that the sale was made under the execution to Massenberg, that one of the appellants gave notice to Massenberg of their vendor's lien, as they claim it, but this did not affect Massenberg, as the lien under which he claimed the property related back to the date of the recording of the judgment of Norwood & Massenberg. In other words, Massenberg does not claim the land as an innocent purchaser for a valuable consideration, but as purchaser under a judgment lien which dates back to the recording of said judgment, and not from the date of purchase.

Even as between Henry Roberts and appellants, it is doubtful whether or not they would be entitled to a judgment enforcing the lien as claimed on the tract of land, under the proof made. See Murray v. Land, 27 Tex. p. 89;Harris v. Crittenden, 25 Tex. p. 325.

Our registration laws mean something or they mean nothing.

If they mean anything, when they say that “no deed, conveyance, lien, or other instrument of writing shall take effect, as regards the interests and rights of third parties, until the same shall have been duly proven and presented to the court as required by this act, for recording of land titles; and it shall be the duty of the clerk to note particularly...