Senter & Co. v. Lambeth
| Decision Date | 17 April 1883 |
| Docket Number | Case No. 4773. |
| Parties | SENTER & CO. v. BETTIE LAMBETH ET AL. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from Lamar. Tried below before the Hon. R. R. Gaines.
Dudley & McDonald, for appellants, cited R. S., art. 2318; Wallace v. Campbell, 54 Tex., 87;Grace v. Wade, 45 Tex., 522.
W. H. Johnson, for appellees.
On July 15, 1881, appellee Bettie Lambeth filed her petition in this case against Scott Lambeth as the maker of a promissory note, for the recovery of the debt, and to enforce the vendor's lien on two tracts of land, one of two hundred acres, the other of one hundred and twelve and one-half acres; and alleging that appellants Senter & Co. claimed the two hundred acre tract, and that the widow and minor children of B. P. Lambeth claimed the one hundred and twelve and one-half acre tract. She made these parties defendants also, and claimed in her petition that the two tracts of land had belonged to the estate of M. Lambeth, deceased; that his administrator, B. P. Lambeth, had sold said tracts under an order of the probate court of Lamar county to Scott Lambeth, who was one of the heirs and distributees of said estate, for the sum of $3,125; that said Scott Lambeth executed his note to the administrator for the amount of his bid, less the amount of his distributive share of the estate, and that the administrator made him a deed to the lands; that December 4, 1879, there remaining due on his note the sum of $2,204, and the administrator being anxious to settle up the estate, it was mutually agreed between the administrator, Scott Lambeth, the purchaser, and the heirs, to wit, plaintiff Bettie Lambeth, Nannie A. Lambeth, Thomas A. Lambeth and Mrs. S. A. Hammond (the other heirs having been arranged with), that the administrator should surrender up Scott Lambeth's note to him, and that the latter should execute to the heirs, severally and individually, his note for each of the heirs' interest in such unpaid balance, all of which was done, the note sued on being the one thus executed to plaintiff. The plaintiff also made her co??heirs, Nannie A. Lambeth, Thomas A. Lambeth and S. A. Hammond, to whom like notes had been executed, parties, and prayed for judgment for her debt, foreclosure of the vendor's lien, and adjustment of the rights and equities of all parties.
About the same time that plaintiff filed her petition, Nannie A. Lambeth, Thomas A. Lambeth and S. A. Hammond, joined by her husband, D. S. Hammond, filed in the same court their separate suits on the notes given to each respectively, making the same parties; and the petitions in all four cases being the same, the four causes were consolidated and thereafter conducted under the style of Bettie Lambeth et al. v. Scott Lambeth et al. By agreement of counsel, with the approval of the judge, all the papers of the three causes that were consolidated with this were left out of the transcript as being useless in the decision of the case, it being, by the terms of the agreement, understood that the petition in this case should be considered the petition of all the plaintiffs.
To the consolidated cause Senter & Co., appellants, answered, claiming ownership and possession of the two hundred acre tract under a sheriff's deed derived through certain attachment suits against Scott Lambeth, embracing levies on the land and eventuating in judgments for debt, and foreclosure of attachment liens, orders of sale, sale, and sheriff's deed to them for the land, claiming that at the time of the levy of the attachments they had no notice, either actual or constructive, of the existence of the debts and liens claimed by plaintiffs or either of them, and that, having paid over $500 in money at the sheriff's sale, on the faith of the purchase, they were bona fide purchasers, and prayed that the two hundred acres be held not subject to said liens as claimed by plaintiffs.
The widow and minor children of B. P. Lambeth, answering to the consolidated cause, admitted the facts set up in plaintiffs' petition, claimed that said B. P. Lambeth, for a valuable consideration paid, purchased the one hundred and twelve and one-half acre tract from Scott Lambeth under a general warranty deed, while Scott Lambeth was the owner of both tracts of land, and before the rights of Senter & Co. attached to the two hundred acre tract, and prayed that, in ordering the sale of said tracts for the payment of plaintiffs' claims, the two hundred acres be first subjected.
Senter & Co., replying to their co-defendants' answer, opposed the relief claimed by them, and denied the application of the rule invoked, for certain reasons set up in their replication.
The cause was submitted to the court without a jury, and judgment was rendered for plaintiffs respectively for the debts claimed, foreclosing the vendor's lien on both tracts, and ordering the two hundred acres to be first sold and exhausting same before resorting to the one hundred and twelve and one-half acres. The judge filed his findings of the law and facts. Senter & Co., appellants, filed a motion for a new trial, which being overruled, they gave notice of appeal, assigned errors, and bring the case into the supreme court by appeal.
The fourth finding of the court is that the appellants had no notice of the vendor's lien of appellees until the day of sale, at which time, and immediately before the sale, appellees gave public notice through their attorneys of their lien on the land about to be sold.
The sole question in the case is whether, under the admitted facts, the lien and rights acquired by virtue of the writ of attachment, judgment and sheriff's sale are superior to those of the appellees, who hold the unrecorded vendor's lien, of which appellants had notice at or before the sale, but of which no notice was had when the writ of attachment was levied or when the judgment was obtained.
The evidence of the vendor's lien in this case was not recorded, nor was it, in the form in which it existed (being the lien springing by operation of law out of the transaction between the parties), susceptible of registration. Let us examine in this connection some of the adjudged cases in which the effect of this want of registration has been considered.
In Grace v. Wade, 45 Tex., 528;Borden v. McRae, 46 Tex., 396;Ayres v. Duprey, 27 Tex., 593;Wallace v. Campbell, 54 Tex., 90, and perhaps in some other cases that have escaped our observation, it has been held that, by force of our registration laws, a lien acquired by a judgment or the levy of an execution on the real estate of the debtor is superior to the legal title which had been, previous to the date of the lien, conveyed by him...
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