Wasson v. Davis

• Decision Date: 01 January 1870
• Citation: 34 Tex. 159
• Parties: W. B. WASSON v. J. M. DAVIS.
• Court: Texas Supreme Court

34 Tex. 159

W. B. WASSON

v.J. M. DAVIS.

Supreme Court of Texas.

1870.

1. If a holder of a vendor's lien accepts a different security, he thereby waives the lien.

2. A vendor of land has a lien upon the land as long as he shows no purpose of releasing the land and taking other security; but any act of his which shows an intention to release the land divests the lien. But the taking of a mortgage on the land for purchase money is to be regarded as evidence of an intention to rely on the land, and does not divest the lien.

3. The true inquiry is, Did the vendor intend to rely upon the estate as his security, or did he intend to abandon that and rely on something else? If the former, he retains his lien; if the latter, and he took security on other property, or from some other person than his vendee, he has lost it.

4. When a vendor seeks to enforce his lien for the collection of a note which was given in part for the land and in part for other considerations, it is incumbent on him to show how much of the note was given for the land.

5. See the peculiar facts of this case for an instance in which the vendor is held to have lost his lien by his own dealings with his vendee and a subvendee, whereby he accepted the individual liability of the latter in lieu of the lien which he had retained to secure the note of the former.

ERROR from Harris. Tried below before the Hon. George R. Scott.

The general character and outline of this case are sufficiently indicated in the opinion of the court. As the case, however, is somewhat peculiar in its facts, and as the questions involved are important and of frequent recurrence, it is deemed well to insert the able and interesting briefs of the respective parties at considerable length. From them can easily be gathered the special facts, as well as the deductions drawn from them in this case.

J. C. Hutcheson, for the plaintiff in error.

1. A vendor's lien for unpaid purchase money lies against the vendee, volunteers and purchasers with notice claiming under him, unless clearly relinquished by the vendor--proof being upon the purchasers to show relinquishment. Hare & Wallace, Lead. Cas. Eq. 209; Story, Eq. Jur. §§ 1217-21; 4 Kent, Com. 152; McLean v. McLean, 10 Pet. 625;1 Tex. 326;14 Id. 318;19 Id. 497.

2. It is immaterial that Davis did not have notice at time of purchase; he was notified before payment, and that was sufficient to charge him. Wigg v. Wigg, 1 Atk. 382; Wormly v. Wormly, 8 Wheat. 421, 469; Lead. Cas. Eq. 197.

3. This lien is presumed in favor of the vendor against all subsequent vendees; and they must repel the presumption, or rebut the equity. Gasson v. Green, 1 Johns. Ch. 308;Fish v. Howland, 1 Paige, 20-30;Warner v. Van Alstyne, 3 Paige, 514; 2 Story, Eq. Jur. § 1223; 6 Johns. Ch. 402.

4. If it remains in doubt, the lien attaches. 2 Story, Eq. Jur. § 1224; Macreth v. Symmonds, 15 Vt. 342; Sug. Vendors, ch. 12, 540-560.

5. The first purchaser holds the land in trust, which passes to all subsequent purchasers with notice. Briscoe v. Bronaugh, 1 Tex. 330; McBeth v. Symmons, reported in Lead. Cas. Eq. 271.

6. If A. sell land, and cause the note to be made to B., the latter has a lien on the land sold. Pinchain v. Collard, 13 Tex. 336; 2 Sug. Vend. 882; Collard v. Seamond, 6 B. Mon. 265.

7. The transfer by the vendor of the note carries with it the lien. 15 Tex. 554;19 Tex. 253, 497.

The facts in this case show that Wasson sold to Williams, and reserved a lien; that Williams sold to Davis, and also reserved a lien; and that before Davis paid his note to Williams, he knew of Wasson's lien. Therefore, under the second proposition and authorities there cited, the lien attached to the land in favor of Wasson in Davis' hands, he being a sub sequent purchaser with notice. Was this lien ever surrendered? It is immaterial what evidenced the debt of Wasson--the debt itself operated a lien on the land. While Wasson held the note of Williams, there was a privity of estate between himself and Davis; and when he accommodated Davis by giving Williams his note, and Williams and Davis consenting that Wasson should be substituted in Williams' place, by Davis executing his note for the purchase money to Wasson, this added a privity of person between the parties, without impairing the privity of estate already existing.

This, under the sixth proposition and authorities there cited, would have been the result had there been no previous privity between Wasson and Davis. How much stronger must the rule operate in favor of Wasson?

A stranger comes in with no privity and both are created; Wasson came in with one already existing, and that, they contend, is taken away.

Suppose the title to this land were to fail, and Davis be ejected; would not he have direct recourse on Wasson, through his covenants of warranty? Then, is that privity of estate destroyed? This was a transaction evidently made for the convenience of the parties, and surely Davis cannot complain that the note he gave Wasson has the same dignity as the one he gave Williams, and for which it is a substitute. It is inequitable and against good conscience that he should have the land of the appellant without paying his money for it. Such proceedings are construed a fraud, and the lien attaches. Chilton v. Boone, 2 Black. 458;Shelton v. Teffin, 6 How. 188.

If the lien ever existed against Davis in favor of Wasson, and there can be no question that it did, is there any reason for supposing that he intended to abandon his lien? If not, there is nothing in taking Davis' note inconsistent with its continuation. A party should be permitted to take a direct obligation for an indirect one, without losing any of the incidents attached to the indirect form of the contract. And if there was a doubt the lien attaches. The vendee must clearly show the abandonment. (Authorities to third and fourth propositions.)

The evidence of Davis, whom we were forced to call upon the stand, would (taken alone) itself sustain the lien. That part of the statement that the note of Williams to Wasson “was given in part for provisions and cattle,” is too indefinite to mean anything, and is contradicted by the witness, Wm. Wasson, and the whole record, which shows the consideration of the note was exclusively the land, out of which defendant would swindle Wasson.

We call the attention of the court specially to the language of the note sued on.

Besides the fact that the statement of Davis is overborne by the whole record, and the evidence of the witness, Wasson, there is evidently error in considering the statement about the cattle, because there was no pleading setting out such facts which would notify us of what he expected to prove. Love & Chappell v. McIntyre, 3 Tex. 10.

Again, at the time the note now sued on was made, there were two notes outstanding, both of which were charges on the land in the hands of Davis--Wasson's note for the original purchase money, and Williams' for the intermediate purchase money. If the latter had sued Davis, he had the right to have Wasson made a party to the suit, so that the equities and rights of all the parties might be adjusted simultaneously. Terrell v. DeWitt, 20 Tex. 256.

In which case Wasson would have gotten judgment for the original purchase money, and that judgment would not only have protected Davis from paying a double amount of money, but the judgment of Wasson would have been a foreclosure on the land, and the mere fact that this adjustment was made outside of court, by mutual consent of parties, and the debt evidenced by a new and substituted note, did not make the balance due Wasson less a lien on the land.

This view of the case we think conclusive of the matter.

Moore & Shelley and E. P. Hill, for the defendant in error. This suit was brought by the plaintiff in error on a promissory note, executed to him by the defendant in error, for $1,964.50, dated June 16, 1867; and he claims that said note is secured by the vendor's lien on a certain tract of land, being one hundred and fifty acres, the homestead of defendant.

It is not pretended that any lien is expressed in the note, or retained in any deed or other writing, or in short, that there was any agreement out of which a lien arises; but the pretense is, that out of certain transactions disclosed in the evidence, the vendor's lien should be implied in favor of plaintiff.

A jury was waived and the cause submitted to the court, and the simple inquiry for this court is, did the court below render the proper decree upon the facts in evidence?

The debt was not disputed, and the issue was as to the lien.

It appears that in 1862 Wasson, the plaintiff, sold and conveyed to one Austin M. Williams the tract of land, in consideration of four notes of the latter, due June 1, 1863, 1864, 1865, and 1866, respectively, and said notes are particularly described in the deed, and the vendor's lien retained for their payment.

Afterwards, in April, 1866, Williams sold and conveyed the same land to Davis, the defendant, for part cash in hand and his note due at twelve months for $1,875, secured by the vendor's lien retained in the deed.

When Williams sold to Davis, the four notes which he (Williams) had given to Wasson for the land, and for the payment of which a lien was retained in the deed, were all past due; were all in the possession of Williams, and were all delivered by him to Davis. The...