61 Tex. 228 | Tex. | 1884
No doctrine is more firmly established than that the vendor has an equitable lien upon the land conveyed for the unpaid purchase money, unless such lien has either been waived or abandoned. Such lien arises by operation of law where certain facts exist.
In this case there is no pretense that Woodson had paid the purchase money for the one hundred acre tract conveyed to Davis. That land was burdened with the vendor’s lien to the amount of the note then unpaid. And when the transaction between the parties is divested of form, in substance and effect the note sued on was given by Woodson to secure the purchase money of the two hundred and sixty acre tract conveyed by Davis to Mrs. Woodson. That is, this unpaid balance due to Mrs. Perry entered into and formed part of the consideration paid and to be paid by Woodson for the two hundred and sixty acre tract, as effectually as if the note had been given directly to Davis and by him transferred to Mrs. Perry in lieu of the former note. The lien arises out of the nature of the transaction as well as the circumstances attending the same. Certainly, there was no waiver of the lien by Perry, for it appears from the evidence of all the parties that such result was never contemplated or intended. There is nothing in the asserted claim of Mrs. Woodson to the land as her separate property. As against the unpaid purchase money no such right could attach to defeat the lien. In this respect married women are not exempt from the rule applicable to others, that, until the purchase money is paid, the land remains bound. Briscoe v. Bronaugh, 1 Tex., 326; Flanagan v. Cushman, 48 Tex., 241; Irvin v. Garner, 50 Tex., 48; White v. Downs, 40 Tex., 225; Beatty v. Brooks, decided at the present term.
Our conclusion is that the judgment is against the evidence and that it ought to be reversed, and that the supreme court should render such judgment as ought to have been rendered by the court below, viz.: That appellants have and recover nothing of Davis and
Reversed and rendered.
[Opinion adopted February 27, 1884.]