Watt v. White

• Decision Date: 01 January 1870
• Citation: 33 Tex. 421
• Court: Texas Supreme Court
• Parties: W. WATT, ADMINISTRATOR, ETC., v. WHITE, SMITH & BALDWIN.

33 Tex. 421

W. WATT, ADMINISTRATOR, ETC.,

v.WHITE, SMITH & BALDWIN.

Supreme Court of Texas.

1870.

1. When notes given for land are transferred, the vendor's lien, if subsisting, also passes to the assignee.

2. C. purchased land in this state from W., and for the purchase money executed his two notes for equal amounts, and due in one and two years respectively. W. transferred the first note to the appellees, and the second to the appellant. Appellees brought suit in Louisiana (where they lived) against C., by attachment of his property, which was replevied by bond and security for twice the value of the property; by which, and by judgment in the Louisiana court in their favor, the appellees obtained a security more than sufficient to satisfy their demand. But, pending their attachment suit in Louisiana, both they and the appellants instituted suits in this state for the enforcement of their vendor's lien upon the land, and the court below rendered judgments in their favor at the same term, and decreed that the land be sold and the proceeds be equally divided between the appellant and the appellees. Held, that there is error in the judgment; that the vendor's lien is itself the creature of equity, and he who seeks the aid of equity, must himself do equity; that the appellees must first exhaust the security obtained by them in their attachment suit, or else must show that it is unavailable or insufficient, before they can be permitted to resort to the land. And held further that they should be postponed, not only to the appellant, but also to any subsequent mortgagees and judgment creditors, if any such there be.

APPEAL from Harrison. Tried below before N. H. Wilson, Esq., sitting as special judge by agreement of parties, the judge of the court having been of counsel.

The opinion of the court recites all of the facts which are deemed material in elucidation of the principles decided. The appellees were citizens and residents of Louisiana, as also was Cuthbertson, the appellant's intestate.

S. P. Donley, for the appellant.

Poag & McKay, also for the appellant. The appellant was at least a simultaneous incumbrancer with the appellees, and ought to have been made a party to their suit in the court below. See Hill. Mort. vol. 2, pp. 90 and 91. If then appellant ought to have been a party to this suit, he is relieved of many of the difficulties to which an intervenor, strictly speaking, is subject. And in fact it is submitted that although appellant came into the court below at his own instance, yet he was properly a defendant, and hence had the right to defend in every manner, and avail himself of every defense which he could have done, had he been made a defendant by the appellees. See Sayles, Pr. § 144; Hall v. Hall, 11 Tex. 546.

The court erred in rendering judgment upon the special verdict, in directing said land to be sold and the proceeds applied to the payment of both debts.

Appellee at one time was an equal incumbrancer with appellant upon said land, but by his subsequent acts, he relinquished his lien. At the date of the institution of the attachment suit in Caddo parish, appellees could have sought their remedy and foreclosed their lien in the district court of Harrison county; but they sought to avail themselves of a more convenient and speedy remedy, and one of as much certainty as an action against the land. Then there was an advantage to them, sufficient to induce them to abandon their lien, or at least to warrant the conclusion that such was their intention, and to seek other and better security. Had Coyle have consented to such abandonment, and the taking of other security, there can be no doubt but that the lien would have been relinquished and discharged. Certainly so when other incumbrancers are interested in such discharge. 10 Smedes & M. 128 and 191. Then if by consent the lien could have been relinquished, why would the same result not follow, in a case where it was entirely in the power of appellees to do that which Coyle could in no wise avoid, and whether Coyle consented or not could in no wise affect the result.

Appellees voluntarily did that which compelled an involuntary act upon the part of Coyle, which if done by the consent of parties, would have relinquished said lien. How now can appellees complain at the result of their voluntary act and the involuntary act of Coyle, when they were in every particular the beneficiaries. If the lien was released as above urged the release took effect upon the levying of the attachment, and the fact that nothing had been or ever could be realized out of said attached property, affects not the question.

A levy of an execution upon personal property, sufficient to satisfy the execution, is a satisfaction of the debt as between the debtor and creditor. See 15 Tex. 187;4 Cow. 417;12 Johns. 207;4 Mass. 403.

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