Preston v. Breedlove, 45 Tex. 47

Preston v. Breedlove

45 Tex. 47 | Tex. | 1876

Gould, Associate Justice.

One of the errors assigned is, that “ the verdict is too vague to support the judgment and decree of the° court.” H we should hold the verdict suffi.-. ciently certain as to the amount, there was still no finding in relation to the vendor’s lien claimed; and, inasmuch as there was a general denial, the verdict was clearly insufficient to support the decree of foreclosure. (May v. Taylor, 22 Tex., 348; McConkey v. Henderson, 24 Tex., 212; Bledsoe v. Wills, 22 Tex., 650; Burford v. Rosenfield, 37 Tex., 42.)

In reversing the case for this error it is proper to notice other questions liable to recur on another trial.

Being in possession under a deed with warranty, it certainly devolved on Preston to establish that the outstanding lien, which he claimed to have paid, and for which he claimed credit on his note, was a valid lien as against his vendor, Smith. The production of a judgment of foreclosure in favor of a prior vendor, Holán, against Holan’s immediate vendee, Thomas, (a proceeding to which it does not appear that either Smith or Preston were parties, and a proceeding which appears to have been commenced whilst Preston was in possession, under a recorded deed connecting back through several complete and recorded conveyances with the defendant Thomas,) did not show that the lien was valid, as against *51Smith or Preston, or that a sale under the decree would affect Preston’s title. A party in possession, claiming under complete and recorded conveyances, is not affected by a decree of forclosure against a remote vendor alone; and a sale under such a decree would be ineffectual to pass the title, at all events, so as to cut off his defenses against the lien. (Mills v. Traylor, 30 Tex., 7; Buchanan v. Monroe, 22 Tex., 542; Chapman v. Lacour, 25 Tex., 94; James v. Jacques, 26 Tex., 323; Johnson v. Byler, 38 Tex., 606; Hall v. Hall, 11 Tex., 526; Webb v. Maxan, 11 Tex.; Watson v. Spence, 20 Wend., 264; 2 Hilliard on Mort., p. 87, par. 35 et seq.; Ram. on Jud. Sales, secs. 176, 199, 382; Freeman on Judg., secs. 162, 205.)

It is scarcely necessary to add that the fact that Clark and wife had brought suit against the defendant Preston, for an undivided moiety of the loto, was not of itself evidence that Ms title had failed to that extent; nor was Preston estopped, by his answer in that case, stating matters going to show that the suit was not well founded.

For the reason before stated, the judgment is reversed and the cause remanded.

Reversed and remanded.