Arledge & Woodson v. T. J. Hail & Co.

54 Tex. 398 | Tex. | 1881

Lead Opinion

Bonner, Associate Justice.

The sheriff’s deed to defendants Arledge and Woodson vested in them the legal title to the land which plaintiff Hail sought to subject to his alleged vendor’s Hen.

The testimony shows conclusively that at the date of the rendition of the judgment in favor of Arledge and Woodson against A. D. Allbright, under which the execution sale and this sheriff’s deed were made, they had no notice of any outstanding equity against the title of A. D. Allbright, and it tends strongly to show that they had no such notice at the date of the sheriff’s deed to them. A. D. AUbright had been in possession of the land and the apparent legal and equitable owner thereof under the sale from WilHam Allbright, through which Hail claims his equity, ever since January 23, 1873. The deed from WiHiam Allbright to A. D. Allbright, by which he held this possession, recited the payment in fuU of the purchase money, and no notice, either constructive or actual, was given of the existence of any outstanding vendor’s lien, and no diligence whatever used to enforce the same. On the contrary, as admitted by Hail himself in his petition in this cáse, the original notes were barred by limitation at the date of the judgment in favor of Aiiedge and Woodson, and which, under the law then in force, created a judgment hen on the land. In this particular the case differs from that of Ware v. Bennett, 18 Tex., 794, in which the original indebtedness to Bennett had been kept alive by subsequent acknowledgments, and was a subsisting demand at the date of the accrual of the demand of Ware.

Under the decision of Burks v. Watson, Arledge and Woodson had the right to interpose any substantial defense which could have been set up by A. D. Allbright himself. 48 Tex., 107; Pitschke v. Anderson, 49 Tex., 1; Avent v. McCorkle, 45 Miss., 221.

The testimony further shows that Hail purchased the notes sued on, and which were given in lieu of the old outstanding notes barred by limitation, after the judgment lien of Arledge and Woodson had attached, and that he purchased them from Mrs. William Allbright; from which we infer that William Allbright was then dead, but it is not shown under what right or authority she made the transfer. ' Neither is any explanation given why no effort was made to collect the original notes or to enforce the alleged vendor’s lien until after Arledge and Woodson had obtained their judgment hen.

Under all the facts and circumstances as presented by the record, we are of opinion that plaintiff Hail failed to establish such superior equity in favor of his claim to subject the land to the payment of the vendor’s hen, as should defeat the legal title held by defendants Arledge and Woodson.

Judgment as to Arledge and Woodson reversed and cause remanded, they alone having appealed, and the judgment in its nature being divisible.

Reversed and remanded.

[Opinion delivered February 4, 1881.]

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Rehearing

ON REHEARING.

Bonner, Associate Justice.

On rehearing in this case, we find that we were mistaken as to the admission in the petition that the old notes were barred by hmitation when the judgment in favor of Arledge and Woodson was obtained, the admission being that they were barred at the date of the execution and delivery of the new notes, which was a few months prior to the date of that judgment. So much of the opinion, therefore, as relates to that question is not applicable to the facts of this case.

The judgment, however, should be reversed upon the remaining facts stated in the opinion, and therefore the motion for rehearing is overruled. -1