Rooney v. Porch

• Decision Date: 05 April 1922
• Docket Number: (No. 281-3525.)
• Citation: Rooney v. Porch, 239 S.W. 910 (Tex. 1922)
• Parties: ROONEY v. PORCH.
• Court: Texas Supreme Court

239 S.W. 910

ROONEY v. PORCH.

(No. 281-3525.)

Commission of Appeals of Texas, Section B.

April 5, 1922.

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

Suit by T. E. Rooney against W. W. Porch. Judgment for defendant affirmed by the Court of Civil Appeals (223 S. W. 245), and plaintiff brings error. Reversed and remanded, with directions.

Tharp & Tharp, of Houston, for plaintiff in error.

Ward & Ward, of Houston, for defendant in error.

HAMILTON, J.

T. E. Rooney brought against W. W. Porch this suit in trespass to try title to 58.7 acres of land, a part of 228.7 acres in Harris county, Tex., patented to Thomas Desel. Desel conveyed the 228.7 acres to John H. Ruff on October 6, 1892, for a consideration of $609.86 cash and two vendor lien notes for $686.10 and $533.63, due in one and two years, respectively, after the date of conveyance. The deed reserved a vendor's lien, and the notes were further secured by a deed of trust on the land.

On November 19, 1892, Ruff executed a deed conveying the 58.7 acres, in litigation here, to T. J. Pierce for a consideration of $156.53 cash, and the assumption and agreement by Pierce to pay $156.53 on each of the two notes given by Ruff in part payment of the purchase money for the 228.7 acres, above described. This deed expressly reserved a vendor's lien to secure the payment of the sums agreed to be paid by Pierce on those two notes.

On December 20, 1892, Desel transferred the notes, above described, executed by John H. Ruff, to C. Cusack.

On January 18, 1907, Ruff conveyed the whole of the 228.7 acres to John C. Morrison.

On February 7, 1907, C. Cusack released the liens upon the land, securing the two notes which had been transferred to him by Desel. This release recites that the two notes had been fully paid, canceled, and surrendered, and in consideration of such payments Cusack releases and quitclaims unto John H. Ruff all right, title, and interest in the land by virtue of the liens thereon securing said notes.

"The title conveyed to Morrison on January 18, 1907, was conveyed to appellee Porch on May 15, 1908, by J. A. Freedman, who held same through mesne conveyance from Morrison.

"On June 7, 1909, T. J. Pierce, for a recited consideration of $50 and other considerations not stated, conveyed the 58.7 acres conveyed to him by Ruff to Mary E. Scott by deed of general warranty.

"On January 6, 1912, Ruff executed a release to Pierce, reciting that he had conveyed the 58.7 acres to Pierce on December 19, 1892, and as part consideration therefor Pierce had assumed and agreed to pay $156.53 in one year and $156.53 in two years on the incumbrances then existing on the land, and that `said notes and all interest thereon have been fully paid and canceled and surrendered to my entire satisfaction.'

"On May 14, 1916, Mary E. Scott conveyed said 58.7 acres to A. E. Coles, who on May 8, 1916, conveyed it to appellant Rooney.

"There was no testimony showing that the two amounts of $156.53, each assumed by Pierce, were paid by him."

The trial in the district court without a jury resulted in a judgment in favor of Porch, defendant in error. Rooney appealed, and the Court of Civil Appeals affirmed the judgment. 223 S. W. 245. He then sought and obtained a writ of error.

Ruff is the common source of title. Rooney claims from Ruff through Pierce. Porch claims from Ruff through Morrison. Rooney's theory as plaintiff was that the purchase money was presumed to have been paid, and that Porch's title was void because his vendor, Ruff, had no title to the land at the time he executed the deed to Porch.

The title that remains in a vendor of land who reserves in his deed a lien to secure the purchase money is superior in the sense that the vendee cannot assert his title against the vendor unless the vendee has paid the purchase money. Except, as security for the purchase-money debt, the title is in the vendee. When the purchase money is paid, all semblance of title in the vendor ceases, and title absolute vests in the vendee.

Unrelated to the lien retained to secure the purchase money, the title remaining in the vendor is merely a right in the vendor to rescind the sale and recover the land by suit or take it back under certain circumstances, without suit, on failure or refusal of the vendee to pay the purchase price. These rights are merely means provided by law to secure to the vendor the purchase money, or in lieu thereof the land itself, as a security against loss of both the purchase money and the land. Carey v. Starr, 93 Tex. 508, 56 S. W. 324; Douglass v. Blount, 95 Tex. 369, 67 S. W. 484, 58 L. R. A. 699.

In the former case the Supreme Court said:

"From the time it was first announced that the reservation of lien in a deed reserved the superior title to the vendor, there has been a continuous and persistent effort to push it to the limit of executory contracts for the sale of land, but this court has steadily resisted that effort and has uniformly limited the vendor's title to the character of security for the purchase-money debt, and,...