Hale v. Baker & Rice, 60 Tex. 217

Hale v. Baker & Rice

60 Tex. 217 | Tex. | 1883

Walker, P. J. Com. App.

The court below determined this case upon the erroneous view, as we conceive, that the holder of the superior title to land under a conveyance of it to another party, in *219which he has reserved a vendor’s lien to secure the purchase money, may, because the contract of sale is executory, enforce the lien by suit for the money, notwithstanding the purchase money note may be barred by the statute of limitations. It has been held in a long series of decisions in this state, that where the contract for the sale of land is executory, as in the instance of the sale and conveyance of land by deed which reserves the vendor’s lien, or where the deed absolute on its face is executed contemporaneous with a mortgage given on the land by the vendee to secure the purchase money, that the superior title remains with the vendor notwithstanding the deed, and in default of payment of the purchase money he may recover the land from the vendee (Dunlap v. Wright, 11 Tex., 597; Pitschki v. Anderson, 49 Tex., 3; Baker v. Ramey, 27 Tex., 59; Peters v. Clements, 46 Tex., 123; Roosevelt v. Davis, 49 Tex., 463; Masterson v. Cohen, 46 Tex., 523); or sell the land to another. Rogers v. Blum, 56 Tex., 6.

And it is immaterial that the notes given for the purchase money have become barred by the statute of limitation; without payment of the purchase money the vendee cannot obtain absolute title to the property as against the vendor. Baker v. Ramey, supra; Ball v. Hill, 48 Tex., 634.

If the vendor go into possession after the vendee has made default, he cannot be turned out by an action of trespass to try title, although the purchase money, as a debt, be barred by the statutes of limitation. Burgess v. Millican, 50 Tex., 397. In such case the fee will remain in the vendor, and the sale be conditional upon the performance of the contract by the vendee. Id.

But so far as relates to a remedy on the purchase money note, the doctrine is also as well settled by our decisions, that if the vendor permits it to become barred by the statute of limitations, the lien, in cases of mortgages and deeds of trust, certainly cannot be enforced; the creditor has no remedy upon his mortgage. Duty v. Graham, 12 Tex., 427; Perkins v. Sterne, 23 Tex., 561; Ross v. Mitchell, 28 Tex., 150.

It was decided in Pitschki v. Anderson, supra, that when an absolute deed is made for land by the vendor, reciting payment of the purchase money, the vendor’s lien for any unpaid purchase money cannot be enforced after the debt is barred by limitation; that the lien will, be barred by the same lapse of time that would bar the debt. The case supposed is one of implied lien as distinguished from an express lien reserved in the deed. We perceive no reason for a discrimination between these kinds of lien where the debt which *220they secure is barred by the statute of limitations. Where the vendor has reserved his lien in the deed, he may enforce the contract specifically by suing upon the purchase money note and foreclosing the lien, or he may, in effect, rescind the contract on default of payment of the note by disregarding his conveyance and sell the land to another, or recover back its possession by suit. But when the evidence of his debt is barred by limitations his opportunity for election is lost, and he must rely for his remedy upon the assertion of such rights only as his superior title to the land confers on him as its owner; he cannot recover the unpaid purchase money.

We conclude, therefore, that the judgment below ought to be reversed and set aside, and that the supreme court should render judgment against the plaintiffs in favor of the defendants for all costs of suit.

Reversed and rendered.

[Opinion adopted October 26, 1883.]