Jackson v. Elliott

49 Tex. 62 | Tex. | 1878

Roberts, Chief Justice.

That such a judgment proforma against Jackson, the maker of the notes, notwithstanding his bankruptcy, to be satisfied only by sale of the land under the vendor’s lien, which land was sold by Jackson to Chadwick with said lien not discharged, can be' rendered, was decided by this court in the case of Elliott v. Booth, 44 Tex., 180.

Chadwick was ‘chargeable with notice of the lien at the time he purchased the land from Jackson, because the deed from Daniels to Jackson, under and through which he derived his title to the land, exhibited the fact that the notes sued on in this case were given by Jackson to Daniels in the purchase of the land, and constituted the consideration therefor; and of that fact he must be held to have had notice which, if followed up, would have given him full notice of the lien. This was held in the case of Peters v. Clements, 46 Tex., 123. The^decree of partition between Jackson and Cochrane, the grantee of the land, recorded in Washington county, was not Jackson’s title to the land, further than that it determined his right in severalty to that portion of the Cochrane grant of land, "an inspection of which should have induced Chadwick to call for the deed, or other instrument, by which Jackson had acquired the right to obtain a portion of said said grant by a partition of it. Daniels, having taken the precaution to have the evidence of his lien recited in the deed to Jackson, was not bound to see that Jackson recorded the deed, in order to preserve his lien as against a purchaser of the land from Jackson, because it was the duty of the purchaser to call for his title to the land.

The defense that Elliott was not the owner of the notes, but that they belonged to Harris, the assignee of Daniels in bankruptcy, cannot avail Chadwick, because the notes were payable to bearer, and the assignee did not intervene in this suit; nor' was he, in any way, made a party to claim any right in the notes; and it was not shown that they were returned to and made a part of Daniels’ estate in bankruptcy. The assignee was not in duty bound to appear in this suit, unless he thought it would benefit the estate which he represented. (McHenry v. La Société Francaise, Sup. Ct. U. S., 5 Otto, 58.)

The plea of res judicata was not sustained by the evidence.

The record of a former suit in Austin county, which was introduced in evidence to sustain this plea, shows that the suit was dismissed as against Jackson upon his plea of bankruptcy coming in, and as to Chadwick, at the next term, without prejudice. This does not establish, either that the matter in controversy was determined by the court so as to conclude the plaintiff, or that he had conclusively surrendered his right of action in the claim sued for. (Haldeman v. The United States, 1 Otto, 584.)

There being no error in the judgment, it is affirmed.

Affirmed.