27 Tex. 52 | Tex. | 1863
We are of opinion that there is error in the judgment of the court below, for which it must be reversed. The original deed from Baker to Crain & Ramey retained a lien upon the lots, for the payment of the purchase money. Upon the authority of the case of Dunlap’s Adm’r v. Wright, 11 Tex., 597, the superior right to the land .remained in the vendor, Baker, until the payment of the purchase money. The deed did not invest the vendees, Crain & Ramey, with absolute title. They held the lots in subordination to the superior right of Baker, until the purchase money was paid. The original suit by Baker against Crain & Ramey (No. 1137) was for the recovery of the money due upon the notes, without any reference to the lien upon the lots. The sale, therefore, by Crain to Ramey, before the lien was set up by the amendment to the petition filed May 4th, 1857, vested in Ramey all the interest which Crain had in the lots; which interest, however, still remained subject to the superior rights of Baker. The subsequent proceedings in the suit No. 1137, after it was dismissed as to Ramey, did not affect his interest, or the interest of his estate, in the lots. But neither Ramey, nor his estate, could acquire an absolute title to the lots, as against Baker, without paying the purchase money; and Baker’s rights are not affected by the fact that the note for the purchase money has become barred by limitation.
Although Baker mistook his remedy, it was error for the court to make a decree vesting one-half of the property in the estate of Ramey. It appears that Baker had received a part of the pur- . chase money. This may raise an equity in behalf of Ramey’s estate, which, perhaps, ought to be discharged before Baker can assert his superior title to the land. We suggest this matter for the consideration of the court below, in view of all the facts that may be shown upon another trial. Judgment reversed and cause remanded.
Reversed and remanded.
Moors, J., did not sit in this case.
