109 Tex. 461 | Tex. | 1919
delivered the opinion of the court.
This suit was brought by plaintiffs in error against defendant in. error to set aside a sheriff’s sale to defendant in error of 320 acres of land in Eastland County, under a judgment foreclosing a vendor’s lien on the land in favor of Claud McCauley and against plaintiffs in error, defendant in error and others.
It was alleged and proven that plaintiffs in error desired to acquire the land in controversy, subject to certain outstanding vendor’s lien notes, and requested defendant in error, as a matter of accommodation, to have the deed made to him, which was done, a part of the consideration being the assumption by defendant in error of the vendor’s lien notes. Immediately afterwards, defendant in error conveyed the land to plaintiff in error, R. G. Moore, wife of plaintiff in error, W. S. Moore, in consideration of the assumption by R. G. Moore of the vendor’s lien notes. Under the agreement between the parties hereto, defendant in error was to hold the title for the benefit of plaintiffs in error and was not expected to discharge the notes, and was to get nothing out of the transaction. Owing to a failure to make interest 'payments, the holder and owner of the vendor’s lien notes, Claud Mc-Cauley, declared same due, and on July 19, 1911, recovered a judgment thereon against plaintiffs in error, defendant in error and others, for $1387.46|, with 8 per cent interest frojm date and costs, with foreclosure of vendor’s lien on the 320 acres of land. On June 7, 1912, Claud McCauley, in consideration of $1452.60 cash, executed unto, defendant in error a written transfer of the judgment.
Defendant in error plead a general denial, and, by cross-action, sought to recover of plaintiffs in error the amount he had been compelled to pay on account of said judgment, for the accommodation of plaintiffs in error, and prayed for general relief.
Upon the conclusion of the evidence offered by plaintiffs in error, the trial court instructed a verdict for defendant in. error, and the Court of Civil Appeals affirmed the judgment on the instructed verdict, holding that plaintiffs in error had no cause of action to set aside the sheriff’s sale but had a cause of action to have the judgment against them decreed satisfied. 168 S. W., 398.
Section A of the Commission of Appeals to whom the case was referred has recommended that the judgment of the Court of Civil Appeals be reversed and that judgment be here rendered for plaintiffs in -error, upon the conclusion that the payment by defendant in error of ihe joint judgment without adjudication of suretyship, against defend.-ant in error, plaintiffs in error and others, operated as a satisfaction thereof. Citing Bank v. Dougherty, 81 Texas, 301, 16 S. W., 1028; Deleshaw v. Edelen, 31 Texas Civ. App., 416, 72 S. W., 413; Tarlton v. Orr. 40 Texas Civ. App., 410, 90 S. W., 534, and Polk v. Seale, 144 S. W., 329.
'The Commission of Appeals was of the opinion that plaintiffs in error would have a cause of action to avoid the sheriff’s sale of the 320 acres of land, on the facts set up in their petition and supported by the testimony of W. S. Moore, and we concur in that opinion.
The effect of an express and unconditional renunciation of his contract, by- defendant in error, was to entitle plaintiffs in error to treat the contract as terminated, if they so desired. The law on this subject was plainly stated by Judge Brown as follows: “The intention to abandon the contract at some future date is no breach of it, but, when that intention is' declared in positive terms and unconditionally, it has the effect, in so far as the promisor is able to do so, to repudiate the
It thus appears that, if defendant in error renounced his agreement, plaintiffs in error became entitled to bid at the sheriff’s sale, and, it is too plain for discussion that if the wrongful conduct of defendant in error prevented plaintiffs in error from bidding at the sheriff’s sale and'enabled him to acquire the land at an inadequate price, his title can not be sustained against direct attack by plaintiff in error. However, judgment can not be here rendered avoiding the sheriff’s sale, by reason of the alleged wrongful conduct of defendant in error; because the trial court, of his own motion, instructed a verdict against plaintiffs in error, without giving defendant in error an opportunity to offer any evidence under his denial of plaintiffs in error’s allegations.
We do not adopt the recommendation of the Commission of Appeals that judgment be here rendered for plaintiffs in error because of the supposed extinguishment of the judgment through the attempted transfer bf same to defendant in error. This case does not call for a determination of the question as to whether one joint judgment debtor, who is really an undisclosed surety of others, may not, by express agreement between himself and the plaintiff in the judgment,, become the owner of the judgment, by transfer thereof. For, regardless of the answer to that question, defendant in error is plainly entitled to full protection, through the vendor’s lien on the 320 acres of land, against damages by reason of the obligations he has incurred entirely by way of accommodation to plaintiffs in error. Defendant in error’s right to such protection is announced in the following portion of the opinion in Faires v. Cockerell, 88 Texas, 436, 28 L. R. A., 528, 31 S. W., 194, viz.: “From a careful examination of the authorities, we reach the conclusion, that when the creditor has no authority from either of the payors, and the debt itself holds no lien upon property, nor is for any reason entitled to priority over other debts of the debtor, the payment of the debt by a co-obligor or surety satisfies the original debt, and the party paying has his right of action against the others upon the implied promise raised by law for reimbursement, according to their sev
Hnder the language quoted, it can not be doubted that if the sheriff’s sale be set aside, defendant in error will be entitled to be subrogated to the vendor’s lien for the amount paid by him on the judgment foreclosing same or to have that judgment enforced for his protection. Having that right, we can not render a judgment which would divest same.
It follows that the judgment of the District Court and of the Court of Civil Appeals should be reversed and that this cause should be remanded for trial in accordance with this opinion, and it is so ordered.
Reversed and remanded..