White v. Downs

• Decision Date: 01 January 1874
• Citation: 40 Tex. 225
• Court: Texas Supreme Court
• Parties: WHITE, SMITH & BALDWIN v. DOWNS, EXECUTOR OF COYLE. AND WATT, ADMINISTRATOR OF CUTHBERTSON.

40 Tex. 225

WHITE, SMITH & BALDWIN

v.DOWNS, EXECUTOR OF COYLE. AND WATT, ADMINISTRATOR OF CUTHBERTSON.

Supreme Court of Texas.

1874.

ON REHEARING.

1. The opinion and reasoning for a judgment in the supreme court form no part of such judgment, nor is a judgment of reversal remanding for a new trial final between the parties, nor conclusive of their rights.

2. The vendor's lien arises by implication as a natural equity creating a constructive trust in the vendee, that he should not keep the estate without paying for it; it arises and exists at the time of the sale, and results from the sale on credit without security.

3. The transfer by delivery of a note secured by the vendor's lien, payable to bearer, passes the lien.

4. The transfer of a note payable to bearer, and secured by the vendor's lien as collateral to secure a less sum than the note so transferred, carries with such transfer the lien, and also the right to priority of payment out of the sum realized on such collateral and the security herefor.

5. The vendor's lien is not lost by an unsuccessful suit by attachment upon other property, nor as between parties by any mere failure to sue.

6. A failure to obtain satisfaction at law has never been held good cause for refusal of equitable relief.

7. The priority of payment out of a note and its security, which passes by the transfer of a note payable to bearer, and secured as collateral to secure a less sum, can be enforced as to the security against a lien of equal standing retained by the party so transferring such collateral.

8. See discussion of facts in legal proceedings with reference to diligence in asserting claims against an estate and against a security by one holding such claim as collateral.

APPEAL from Harrison. Tried below before the Hon. J. W. Pope, special judge.Henry G. Hall, for appellants, cited Story, Eq. secs. 633, 634, 642, 645, 1035, 1226; McAlpin v. Burnett, 19 Tex. 500;Nesmuth v. McLemore, 23 Tex. 442;Thurbur v. Jewett, 3 Mich. 295;Butler v. Miller, 1 Comst. 496;Jordan v. Hudson, 11 Tex. 82;Sublett v. McKinney, 19 Tex. 444;Hicks v. Bailey, 16 Tex. 232; Pas. Dig. art. 4787, note 1072; Salzman v. His Creditors, 2 Rob. La. 243; Edw. Bail. 237; Knight v. Holloman, 6 Tex. 162;Swift v. Tyson, 16 Pet. 11; Story, Prom. Notes, secs. 186, 284; Story, Bills, 372; Story, Con. 725; Edw. Bail. 199, 223, 237, 260; Levy v. Stewart, 11 Wall. 253; Story, Confl. Laws, secs. 538, 539, 554; Bedwell v. Thompson, 25 Tex. 247; Drake v. Brander, 8 Tex. 257; Parker County v. Sewell, 24 Tex. 240; Robertson v. Paul, 16 Tex. 447; Niblett v. Shelton, 28 Tex. 548; Murray v. Able, 19 Tex. 513.

Wm. Steadman and H. McKay, for appellees.

MCADOO, J.

The matters embraced in this case have been twice adjudicated in this court before; and as the judgment here appealed from is in accordance with those adjudications, we affirm the judgment of the court below in all things.

Walton & Green, for appellants, for rehearing.

ON REHEARING.

GRAY, ASSOCIATE JUSTICE.

This cause was before the provisional supreme court in 1870, and is reported in 33 Tex. 421. Counsel for appellees claim that the opinion and judgment then delivered and pronounced are conclusive of this case. The cause and parties are the same; but if we understand the complex, voluminous and multifarious pleadings, interventions and reconventions in the several consolidated suits, with the numerous exceptions, exhibits, etc., repeated time and again in various forms, in the record now here, which tend to confusion rather than to plain and clear statement of the issues intended to be made, we find quite a new and different case made by the proceedings had after the judgment of 1870, which remanded the cause for a new trial.

But if this is the same case as that formerly before the court, it is a misnomer to call the opinion and a simple judgment of remand for a new trial res judicata. The opinion delivered may properly control the lower court, and ordinarily should do so, and would undoubtedly, on the same facts, be entitled to great weight on a second appeal to this court. But the opinion or reasoning for the judgment is no part of it, and the judgment itself is not final between the parties, and therefore is not conclusive.

This view is illustrated by the history of the case of Layton and Hall, reported in 10 Tex. 57;16 Tex. 279; and 25 Tex. 204. In the two former opinions a majority of the court held a doctrine on a question of evidence which was decisive of the case. This was unwillingly followed by the district judge who presided on the third trial, and yet, on a third appeal, that very doctrine was expressly repudiated as erroneous, and the cause again remanded. If there was no res judicata in that cause, it is plain there is none in this. Upon remand the cause was still before the court, the pleadings subject to amendment, and additional evidence admissible--all of which appear by the record now here, materially affecting the relative rights and duties of the parties.

The case now here, as shown by the facts and history of proceedings had, seems to be substantially as follows: John Watt sold and conveyed by absolute deed to Coyle a tract of land in Harrison county, in consideration of which Coyle executed to him three promissory notes, of the same tenor and date, except that they fell due at yearly periods, on January 1, 1859, 1860, and 1861. The notes were made payable to bearer, for the sum of $2,473.33 each, and expressed on their face the consideration for which they were given. The first note was paid, but the second and third were transferred before maturity, by delivery to one Cuthbertson, who then resided in or near Caddo parish, Louisiana. He transferred the second note by delivery to appellants, as collateral security for a debt on account to them, as merchants, also residing in Caddo parish, at Shreveport. Their agent gave a receipt for the note, bearing date January 24, 1860, saying in it, “which I promise to sue for or return to him; my lawyers are Harris & Denson, Shreveport, Louisiana;” and signed it as agent for appellants.

The facts as to transfer of the note as collateral security did not appear, by pleading or evidence from either party, on the former trial. In February, 1860, appellants, by the attorneys named in the receipt, instituted suit on the note in Caddo parish district court, alleging that they were holders and owners of it by transfer from Watt, the payee; and procured an attachment, which was levied on personal property of Coyle, found there, of greater value than the sum of the note. Coyle was cited and answered, and he regained possession of the property by giving a release or replevy bond, with two sureties. He defended, and postponed trial of this suit until the war between the states and stay laws suspended suits for debt in Louisiana and Texas. Coyle died in 1862, and Downs became administrator on his estate in Texas in 1863. The suit in Louisiana was revived after the war against an ancillary administrator appointed there, and judgment for appellants rendered, in February, 1868, for the debt, with only five per cent. interest; but unfortunately, as fully appears from the evidence, the ancillary administrator had no estate, and the sureties on Colye's replevy bond had become insolvent, so that appellants realized nothing by that attachment suit.

Cuthbertson also instituted suit against Coyle, in March, 1861, in Harrison district court, upon the third note, in which suit he claimed the security of the vendor's lien on the land. This suit was also defended until after Coyle's death, suspended during the war, and judgment not recovered until June, 1868, against his executor, with a decree for sale of the land.

Meantime appellants had also instituted suit on the second note in that court against Coyle's executor, in April, 1867, alleging their ownership of it, and also claiming the vendor's lien; and in July, 1868, they amended by setting up the judgment recovered in Louisiana in aid of their claim. But Cuthbertson's administrator, Watt, having recovered his judgment and decree, now intervened in appellant's suit, resisting their recovery, mainly on the ground that they had lost or abandoned their right to the vendor's lien by reason of their suit and levy of attachment on personal property and proceedings in Louisiana. Judgment was rendered, and appellees appealed.

After the opinion of the court sustaining this defense and remanding the cause, both parties amended their pleadings. Appellants amended, setting out their claim of debt against Cuthbertson's estate by account (afterwards acknowledged by his note for $1,010, given as partner of one McMakin, on the eight of December, 1861), for which the Coyle note had been transferred as collateral security, and claiming judgment to the extent of that debt as a lien on Coyle's land in preference to Cuthbertson's claim. But Watt, administrator of his estate, also amended, claiming that by reason of appellants' negligence in prosecuting their suit and note against Coyle, they had lost all right to lien and debt as against Cuthbertson's estate, and were liable in damages for the difference between their debt against Cuthbertson and the amount of the note on Coyle.

It further appears, that after the remand the intervenor, administrator of Cuthbertson, applied to the court, in the administration of Coyle's estate, for an order to the executor to sell the land in satisfaction of the Cuthbertson judgment of June, 1868. This was resisted by appellants, who appeared for that purpose, asserting their right and pendency of their suit. The court ordered the sale in satisfaction of Cuthbertson's decree, and it was advertised, but sale was stayed by injunction sued out by appellants. This suit was answered in vacation, and the injunction dissolved by an interlocutory judgment, but requiring a refunding bond of appellees before selling under the order of sale, and retaining the...