Pitschki v. Anderson
49 Tex. 1
Tex.
1878
Check Treatment
Gould, Associate Justice.

On December 28,1868, W. B. Anderson sold and conveyed to F. J. Arnold 200 acres of land, the deed reciting a consideration of $300 gold, the receipt of which was acknowledged. Arnold died the following October, leaving a widow and two children, who, without administration, hеld possession of the la,nd and other property of the estate. On July 8, 1871, the widow mаrried Pitschki, and on December 29, 1873, Anderson instituted this suit against Pitschki and wife and her children by Arnold, сlaiming that only $100 of the purchase-money had been paid; that Arnold agreed tо pay the other $200 whenever requested, and seeking to enforce the vendоr’s lien for the unpaid balance. The petition alleged that demand had oftеn been made for payment of Arnold and of Pitschki and wife, and claimed interest from January 1, 1869.

There was a plea of limitations of two years, and that the demand was stale; and, though very general and defective, ‍​​​‌‌‌‌‌‌​​‌‌​‌‌​​​‌​​​​​‌​‌‌​​​​​‌​​‌‌​‌​‌‌‌​‌‌‍it was not excepted to; but, аs the case stands, must be regarded as presenting those defenses.

The testimony оf Anderson himself, corroborated by two other witnesses, established that $200 of the purchase-money was to be paid “ on demand,.in the course of a few months ”; that Arnоld died before demand made; that after his death demand was made of his widow, who sаid that she would pay the debt,and that she' fully understood the contract; but that after her second marriage she and her husband declined payment.

*3A jury was waived, the cause submitted to the court, and there was judgment for plaintiff ‍​​​‌‌‌‌‌‌​​‌‌​‌‌​​​‌​​​​​‌​‌‌​​​​​‌​​‌‌​‌​‌‌‌​‌‌‍for $213.60, to he made out of the sale of the land, giving no. personal judgment.

There are several questions discussеd by counsel, but the assignment of error presents the single question of whether the court erred in disregarding the defense.of limitations, and it is not proposed to notice any other.

Appellee contends that a vendor’s lien is not within the purview of the statute of limitations, but that it may be enforced after the ‍​​​‌‌‌‌‌‌​​‌‌​‌‌​​​‌​​​​​‌​‌‌​​​​​‌​​‌‌​‌​‌‌‌​‌‌‍period which would bar the debt, if unsecured by a lien. The cases in this State cited in support of this proposition are Dunlap v. Wright, 11 Tex., 604, 605, and Baker v. Barney, 27 Tex., 59, in each of which the contract was regarded as exеcutory, and the vendor was secured by the fact that he still had the title. True, in each case the vendor had made a deed; but in the first he liad at the same time takеn a mortgage to secure the purchase-money; and the other, it was reсited in the deed that a lien was retained for thé unpaid purchase-money. A long train of decisions in this court have classed such transactions as executory contracts, notwithstanding the deed. (See Peters v. Clements, 46 Tex., 123, and Masterson v. Cohen, Id., -523.) In sales thus made, the vendor does not part with Ms title, and therefore is not remediless, although the claim for the unpaid purchase-money be barred by limitation. But where the deed is absolute and unconditional, and the vendor ‍​​​‌‌‌‌‌‌​​‌‌​‌‌​​​‌​​​​​‌​‌‌​​​​​‌​​‌‌​‌​‌‌‌​‌‌‍has nothing but his implied lien, the rule is different. That imрlied lien which the law gives him for the unpaid purchase-money, whether the debt be or be not evidenced by uniting, is but an incident of the debt, and does not survive it. (See Trotter y. Erwin, 27 Miss., 777, in which the Maryland cases cited by appellee were considered, but not fоllowed, the court holding that “ the lien would be barred by the same lapse of time thаt would bar the debt.” (See, also, Perkins v. Sterne, 23 Tex., 561.)

The unpaid $200 was not evidenced by writing, and was ■ *4subject, to the limitation of two years. It was alleged and proved to be payable on demand, and unless the qualification оf tliis in the evidence, ‍​​​‌‌‌‌‌‌​​‌‌​‌‌​​​‌​​​​​‌​‌‌​​​​​‌​​‌‌​‌​‌‌‌​‌‌‍as “ on demand in course of a few months,” changes the rule, limitation would commence to run from the date of the sale. (Cook v. Cook, 19 Tex., 436.) But certainly thе few months had elapsed before March 30, 1870, the time at which the suspension of limitаtions ceased. Giving the plaintiff the benefit of the utmost"liberality, and allowing the twelvе months after death during which limitation ceases to run, when there is no administration, (Pasehal’s Big., art. 4606,) to commence with March 30,1870, (a mode of computing time which it is, howevеr, not designed to hereby approve,) there still elapsed, after the exрiration of that twelve months, two years and nine months before suit was brought. - It is clear, under the evidence in the record, that the debt was barred, and that, therefore, the lien was gone.. The judgment'is reversed and the cause remanded.

Beversbd and remanded.