287 S.W. 279 | Tex. App. | 1926
This suit was instituted by appellee Litwood Oil Supply Company, a corporation, to establish and recover a debt against its coappellees W. W. Harris, W. C. Harris, W. L Andrews, and H. W. Byers, and to foreclose against them a deed of trust lien on a certain tract of land situated in Tarrant county, and to determine the rights, if any, of appellant, W. P. Thompson, in and to said tract of land. The Litwood Oil Supply Company, being the active litigant, will be designated as appellee, and the other appellees will be referred to when necessary by name. An agreed statement of the facts was made and filed as a part of the record. It appears from the same that said tract of land was owned by appellant; that on the 20th day of June, 1922, he conveyed the same to said W. W. Harris, W. C Harris, and W. L. Andrews, and received as part of the purchase price therefor a vendor's lien note for the sum of $1,300. The vendor's lien was acknowledged in said note and expressly retained in said deed, and at the same time said purchasers executed and delivered to appellant a deed of trust on said tract of land to secure said note. Said deed of trust was not filed for record until August 13, 1923, and said deed was not filed for record until September 14, 1923. On August 14, 1922, before either of said instruments was filed for record, said Harrises and Andrews executed and delivered to appellee certain promissory notes, and to secure the same executed and delivered to it a deed of trust on said tract of land. The notes sued on are those of said series remaining unpaid. Said deed of trust *280 was filed for record August 21, 1922. Thereafter, on May 11, 1923, said Harrises and Andrews conveyed said tract of land to said H. W. Byers, who assumed the $1,300 note due appellant and the notes here sued on by appellee. This deed was filed for record June 11, 1923. On May 16, 1923, said Byers conveyed said land to J. S. Ray, who purchased subject to appellant's $1,300 note. Ray was not made a party to this suit. Appellant caused said tract of land to be sold under his deed of trust on the first Tuesday in September, 1923, at which sale he became the purchaser for the sum of $1,000, which was credited on his said $1,300 note. The deed from the trustee to him was filed September 11, 1923. Following said sale appellant took possession of said tract of land and has since held possession thereof continuously. No complaint of his action in taking possession is made. There is nothing indicating that appellant had any actual notice of appellee's deed of trust or that it was claiming any lien on said property prior to said trustee's sale. None of the other parties to this suit had any actual notice of said sale until after it was made, and appellee had no notice of the existence of said deed of trust at the time it acquired its said lien. Subsequent to said sale and prior to the institution of this suit, appellant offered to convey said land to appellee if it would pay him the amount of said vendor's lien note. He made a like offer to said Byers. Both said offers were refused.
Appellant filed an answer, in which he demurred to appellee's petition and also set up such of the facts above recited as he deemed material to the rights asserted by him, and asked for judgment that appellee take nothing against him, on the ground that appellee's only right in said land as against him was a right of redemption, and that appellee had not offered to redeem. He sought no affirmative relief.
Appellee, in reply to said answer, set up the facts aforesaid, and admitted that appellant acquired the legal title to said land at said trustee's sale, but denied that said sale was a foreclosure of appellant's lien for purchase money, and claimed that it was merely a foreclosure of an ordinary mortgage lien, which, by reason of delay in filing for record, was inferior to its lien, and further claimed that appellant, by electing to sell under such mortgage lien, waived his vendor's lien and held title to said tract of land subject to the lien created by its deed of trust.
The case was tried before the court and judgment rendered awarding appellee Litwood Oil Supply Company a recovery against defendants Harris, Harris, and Andrews for the sum of $961.40 and a foreclosure of its lien against all the other parties to the suit. Said judgment directs that the proceeds of the sale of said property shall be applied first to the satisfaction of appellee's judgment, and that any remainder thereof after satisfying such judgment shall be paid to said Byers.
The general rule in this state, as well as elsewhere, seems to be that a lien created by deed of trust is impressed with the character of the debt which it is given to secure. If it is given to secure purchase money, it has the status of a purchase-money lien. Ufford v. Wells,
The sale by appellant to the Harrises and Andrews was executory. In case of an *281
executory sale a judicial foreclosure by the vendor against his immediate vendee alone entitles the purchaser at sheriff's sale thereunder to possession of the property so sold, not only against the defendant in such suit, but against all those holding such property or claiming any right therein under him. Foster v. Powers,
The purchaser at a sale regularly made in the exercise of a power in a duly recorded mortgage takes the mortgagor's title divested of all incumbrances made subsequent to the execution delivery and record of such mortgage. Hampshire v. Greeves,
The other issues raised by appellant are subsidiary to those above discussed and will not necessarily arise on another trial. Since the court overruled appellant's demurrers and held that appellee's lien was superior to appellant's rights in the property, and appellee may have been misled by such ruling, we will not render judgment but will remand the cause for another trial. Baker v. Shafter (Tex.Com.App.)
The judgment of the trial court is reversed, and the cause remanded.