Robinson v. Black

56 Tex. 215 | Tex. | 1882

Delany, J. Com. App.

There are three assignments of error in this case, -but they present only one question for our determination. Plaintiff in error contends that as his vendors, Hendrix and wife, were in possession of the land in dispute and holding a deed for the same when proceedings were instituted in the two cases of De Borde & Karner v. Bishop, and Self v. Bishop, and were not made parties to those proceedings, they were not affected by the judgments.rendered therein. This is certainly the rule when a mortgagee seeks to enforce his mortgage against the mortgagor, or a vendor holding a mere equitable lien for the purchase money brings suit against his vendee. In each of these cases a subsequent vendee is a necessary party; for in neither case does the plaintiff hold the legal title. This rule is so well established that we need not cite authorities to support it.

But the case before us does not fall within this rule. Plaintiff in error did not have the legal title. Neither he nor his vendors had anything more than an equity. They had notice by the recitals of the deed under which they claimed that the purchase money had not been paid.

• This case resembles very much the case of Ufford v. Wells, 52 Tex., 612. But the two cases are not exactly alike in every particular. In Ufford v. Wells the suit for foreclosure was brought by the vendor and the land was bought by him at the sale. In his deed to the vendee he had reserved a lien to secure the payment of the purchase money. But before he brought his foreclosure suit his vendee had sold the land and the purchaser had put his deed upon record. In an action of trespass to try title by the heirs of Wells against a subsequent purchaser of the land, it was held that the defendant could not protect himself upon the ground that the purchaser from the original vendee had not been made a party to the foreclosure suit. In the case before us, the suit to foreclose was not brought by the vendor, nor. was the land bought by him at the sale made under the decree. The foreclosure suits were brought by assignees of the purchase money notes, and at the sale the land was bought by a stranger, viz., C. L. Watson, the landlord of defendant in error. It is unnecessary for us to inquire in this case where the legal title was after the transfer of the purchase money notes. Whoever may have had it, it is certain that plaintiff in error did not. We have the case, then, of a plaintiff who has only a mere equity bringing trespass to try title against a defendant in possession, whose equities are, to say the least, equal to his own. We think the judgment should be affirmed.

[Opinion delivered February 6, 1882.

Affirmed.