Case No. 4837 | Tex. | Apr 24, 1883
The action of the court in quashing •the writ of attachment on the ground of variance was correct. The exact amount of the debt, too, for the securing of which the writ of attachment was sought, appears not to be made sufficiently certain from the averments of the petition and the affidavit. Brown v. Martin, 19 Tex., 343" court="Tex." date_filed="1857-07-01" href="https://app.midpage.ai/document/brown-v-martin-4888905?utm_source=webapp" opinion_id="4888905">19 Tex., 343; Marshall v. Alley, 25 Tex., 342" court="Tex." date_filed="1860-07-01" href="https://app.midpage.ai/document/marshall-v-alley-4889811?utm_source=webapp" opinion_id="4889811">25 Tex., 342; Espey v. Heidenheimer, Galveston Term, 1883.
The court was in error, however, in dismissing the case for want of jurisdiction. The constitution (art. V, sec. 86), and also the statute (R. S., art. 1117) provides that the district court shall have jurisdiction in all cases for the enforcement of liens on real estate.
Here the land described in the petition, on which it is sought to foreclose the vendor’s lien, is alleged to be in Lee county, and was purchased by appellee of Mrs. Catherine B. Mundine, and Mrs. Mundine being then indebted to appellant as administrator of the estate of Wm. Joiner, deceased, instead of taking all the notes payable to herself, or order, directed appellee to execute some of the notes to appellant, as such administrator, in satisfaction of her debt to the estate of appellant’s intestate. This was done, and after-wards appellee executed by way of renewal to appellant as administrator, the notes now in suit, in -lieu of the former notes that were unpaid. The fact that the first notes were executed to appellant instead of Mrs. Mundine (the original vendor), or that subsequently these notes were taken up and other notes substituted, would not affect, as between these parties, the vendor’s lien for the purchase money; that always exists in such a case in the absence of its waiver. Hicks v. Morris, 57 Tex., 659. It was clearly such a lien as was contemplated by the constitution and laws, when jurisdiction was conferred on the district court as to the enforcement and foreclosure of liens on real estate. R. S., art. 1198, clause 11.
Without any contract or agreement, by operation of law this lien springs at once out of the contract of purchase, and exists and survives until waived or extinguished by payment, as between the original parties to the notes, wholly independent of any agreement,, verbal or written. Hence the averment in the petition in this case as to the existence- of the vendor’s lien, though not as- full as it.
Hor, as between these parties, is the lien waived, lost or abandoned by the fact that the original note for the purchase money was, by the direction of the vendor, executed to a third person. Her is such a lien lost, as between the parties, by the fact that such third person afterwards surrenders to the vendee his original note (as in this case), and takes others in their stead. De Bruhl v. Maas, 54 Tex., 473; Gillum v. Collier, 53 Tex., 592" court="Tex." date_filed="1880-10-19" href="https://app.midpage.ai/document/gillum-v-collier-4893441?utm_source=webapp" opinion_id="4893441">53 Tex., 592; Clements v. Lacy, 51 Tex., 150" court="Tex." date_filed="1879-07-01" href="https://app.midpage.ai/document/clements-v-lacy-4893214?utm_source=webapp" opinion_id="4893214">51 Tex., 150; Irvin v. Garner, 50 Tex., 448; Flanagan v. Cushman, 48 Tex., 241" court="Tex." date_filed="1877-07-01" href="https://app.midpage.ai/document/flanagan-v-cushman-4892981?utm_source=webapp" opinion_id="4892981">48 Tex., 241; Prince & Zuter v. Malone, Galveston Term, January 28, 1881, opinion of Commission of Appeals by Hon. A. S. Walker, declining to follow Malone v. Kaufman, 38 Tex., 154. See, also, Hicks v. Morris, 57 Tex., 659, cited above, where Malone v. Kaufman is expressly overruled; Pinchain v. Collard, 13 Tex., 333" court="Tex." date_filed="1855-07-01" href="https://app.midpage.ai/document/pinchain-v-collard-4888160?utm_source=webapp" opinion_id="4888160">13 Tex., 333; Senter & Co. v. Lambeth, Austin Term, Supreme Court, 1883 (a case where the notes for the purchase money were renewed); Glaze v. Watson, 55 Tex., 563" court="Tex." date_filed="1881-11-05" href="https://app.midpage.ai/document/glaze-v-watson-4893633?utm_source=webapp" opinion_id="4893633">55 Tex., 563.
In this case the allegations in the pleadings are sufficient to show that the vendor’s lien has not been waived or abandoned, and if, on the trial, this proves to be the fact, the district court of Lee county has jurisdiction of the case, notwithstanding the fact that the residence of the appellee is in Colorado county.
The judgment is reversed and the cause remanded.
Reversed and remanded..
[Opinion delivered April 24,1883.]