77 Tex. 639 | Tex. | 1890
—It has been repeatedly decided in this State that where one sells land to another and the purchase money is paid by a third person, to whom the vendee gives a note for the purchase money reserving a vendor’s lien, the note and lien are good in the hands of such third person; and where such note is renewed, still reserving the lien, the note and lien may be enforced. The appellant insists that there can be no lien to secure the payment of the note sued on, because when the two notes for which it was substituted were given by Johnson, J. E. Thomas and those under whom he claimed had neither of them occupied the premises for three years as required by law to authorize a pre-emptor of a homestead to demand a patent. In favor of this proposition appellant cites the case of Palmer v. Chandler, 47 Texas, 333, which he says supports his view of the law; but upon examination of the opinion it will be seen, as stated therein, to rest upon the fact that the statute under which
In the case before us the original entry was made by W. S. Lingo in the spring of 1876; he and his wife quit-claimed to T. W. Plummer for 825, August 23,1876, after having made some improvements, and then moved away to Missouri. Plummer owned and lived on another homestead at the time of his purchase, and never occupied the land in any way.
On the 18th of February, 1882, Plummer and wife conveyed the premises to J. B. Thomas, who moved on the land with his family and remained on it until the 23d of March, 1883, when he and his wife conveyed the land to defendant H. Johnson, who on July 1, 1885, made the proof of occupancy as required and received patent for the land dated December 22, 1886.
The original entry of Lingo was made under the Act of 1873, which provided that ,cthe person who has or shall occupy any portion of the public domain as a homestead; * * * that such person or his assignee or assignees shall be entitled to a patent therefor upon filing in the Land Office an affidavit to the effect that such person or his assigns have occupied and improved said lands for three years,” etc. A fair construction of this statute will authorize a sale of an incomplete occupation by a preemptor of a homestead and will allow the time of occupancy of the original settler and his assignee to be added together in computing the three years.
We must hold, however, that Plummer acquired no homestead right by his purchase from Lingo, because he had a homestead at the time of his purchase and did not continue the possession for three years, Lingo’s possession being only of a few months duration. Gambrell v. Steele, 55 Texas, 582. But it will be seen that Thomas went in possession by purchase from Plummer February, 1882, and he sold to Johnson, defendant, on the 23d ■of March, 1883, who continued the possession until his time of occupancy connected with that of Thomas amounted to three years, when he made the necessary proof. Johnson’s individual possession up to the time he made the proof did not amount to three years.
There can be no doubt that under the law in force at the time of Thomas’ entry the time of the occupancy of the assignee and those under whom
It is clear that under the Act of 1873 and that of 1879, as found in the Revised Statutes, a settler’s inchoate right by incomplete occupancy was an assignable right; that it constituted such an interest as would support a sale and a lien thereon as between the parties if the assignee continues the possession and obtains the title. Johnson obtained his title by virtue of his own and the possession by previous occupants (presumably that of Thomas, as there was no break in their possession), which had been assigned to him and for which he gave his notes. We think he obtained from Thomas a valuable interest in the land, which being kept alive against the State by continued possession on his part until he was entitled to the land, was sufficient as a consideration to support the notes and the liens therein expressed. It will be noticed that it was only decided in Palmer v. Chandler, supra, that an implied lien would not arise under the law and facts of that case, while in this case the lien is given by express contract, which in our judgment was predicated upon a sufficient consideration. The law, as we have seen, under the original entry of Lingo recognized the right of an assignee, and more especially the laws in force at the time of Thomas’ entry and his sale to Johnson recognized the right of sale and the right of the assignee to the benefit of his own and the possession of his assignor. We do not think defendant can so avail himself of the benefits of his purchase and obtain his title by virtue of the rights so acquired, and then repudiate the express obligations so incurred. The land may have returned to and become a part of the public domain by reason of Plummer owning another homestead at the time of his purchase and his failure to occupy it; still there was sufficiently long occupancy by Thomas and Johnson to perfect the title. The patent issued to Johnson by virtue of rights he acquired from Thomas, and it can not be said that there was no consideration for the note and the lien expressed therein.
We do not think there was error in giving judgment for the amount of the note and foreclosing the lien secured thereby. We are of opinion the judgment should be affirmed.
Affirmed.
Adopted June 17, 1890.
