Parker Cnty. v. Sewell

• Decision Date: 01 January 1859
• Parties: PARKER COUNTY v. J. H. SEWELL AND OTHERS.
• Court: Texas Supreme Court

24 Tex. 238

PARKER COUNTY

v.J. H. SEWELL AND OTHERS.

Supreme Court of Texas.

1859.

The taking of a distinct and independent security, by a vendor of real estate, where it does not appear that he reposed, as well upon his lien, as upon such security, will be considered a waiver of the lien.

ERROR from Parker. Tried below before the Hon. Nat. M. Burford.

This was a suit brought by Parker county against James H. Sewell, John H. Prince, and G. K. Elkin, to recover the amount of a note given by them to the plaintiff, as the consideration for the purchase by Sewell of certain town lots belonging to the said county, and to enforce the vendor's lien on the lots, which the plaintiff claimed to retain by virtue of the sale. Prince and Elkin executed the note as the securities of Sewell.

The note was given for the sum of $141, dated 24th of June, 1856, payable two years after date; suit was brought to the January term of the court, 1859.

The petition alleged the consideration of the note, and that, on the day of making the same, a deed was executed by Parker county to Sewell, for the lots. But there was no averment that the plaintiff retained, or required other security, than the personal liability of Sewell, and of his sureties, the other makers of the note.

Isaac Anderson, John W. Mulkin, and B. G. Huff, intervened, and made themselves defendants; they claimed the lots as innocent purchasers from Sewell, and resisted the application of the plaintiff to enforce the vendor's lien, on the ground that it had waived its lien by taking independent, personal security, namely, the joint makers, with Sewell, of the note sued on.

The plaintiff filed a demurrer to the plea of the intervenors; a jury was waived, and judgment was rendered in favor of the plaintiff against the defendants Sewell, Prince, and Elkin, for the amount of the note, and interest; and the court decreed that the lots were not subject to the vendor's lien, and that the intervenors be quieted in their purchase thereof.

The plaintiff thereupon appealed, and assigned for error, the rendition of judgment in favor of the intervenors for the lots, the quieting them in their possession thereof, and refusing the petitioner's prayer for the enforcement of the vendor's lien.

Norton & Fisk, for the plaintiff in error.

J. C. Rushing, for the defendant in error.

BELL, J.

The doctrine, that the vendor of land retains a tacit lien upon it, for the unpaid purchase money, which lien, courts of equity will enforce against the vendee, and those claiming under him, with notice that the purchase money remains unpaid, is well established in the jurisprudence of this country. But there has been much diversity of decision, both in the English and American courts, upon the question, what circumstances will amount to evidence of the waiver of the lien by the vendor. It would be an unprofitable labor to trace the history of this subject through all the cases. I shall, therefore, content myself with a brief statement of the law of the case now before the court, and with a reference to those sources of information which will enable the practitioner and student, to obtain a full view of the whole subject of the vendor's lien, in the various aspects in which it has been considered by the courts.

In the case of Gilman v. Brown, 1 Mason, 212,...