46 Tex. 251 | Tex. | 1876
The court charged the jury, in effect, that the defendants, holding under the sheriff’s deed, given upon the sale of the land, under the judgment against Cumby, in favor of Robertson, enforcing the vendor’s lien
The verdict and judgment were rendered in accordance with this charge. Defendants assign this charge as error, cominitted to their prejudice.
The facts, mainly, on which this charge is based, are, that Messrs. Stedman, Jones, Hollingsworth, and Robertson, being the owners in common of two adjacent tracts of land, sold them to Cumby, gave to him a joint bond for title ■ upon Ms paying them fifteen hundred dollars, secured by Ms note executed to them for that amount; that Cumby, having paid all of the money due on said note, except $165.30, wMch was due to Robertson on his part of the note, he, Cumby, on the 1st of October, 1860, executed to said Robertson Ms note for said amount, the other parties having then been paid in full their respective shares thereof. Afterwards, Cumby executed Ms mortgage upon said land in favor of Phelps & Co., to secure their debt against him, on the 29th of October, 1866, which was duly recorded; that afterwards, to wit, on the 9th of April, 1869, Robertson brought suit against Cumby, on the said note, and obtained a judgment for the same, with a decree for the foreclosure of his vendor’s lien upon the land, under wMch judgment the land was sold and purchased by Mrs. Adriana E. Spivey, under whom the defendants, who have appealed in this case, hold by deeds of purchase and by possession. Phelps & Co. were not made parties in the suit of Robertson v. Cumby
Supposing these facts to have been established to the satisfaction of the jury, did they authorize such a charge, as the correct rule, in adjusting the respective rights of the parties ? We tMnk not. As between Robertson and Cumby, the whole of the land was subject to the payment of the pur
In support of this charge of the court, we are referred to the case of McDonough v. Cross, (40 Tex., 251,) which is not at all in point applicable to this case. That was a very complicated case, in its facts, wherein a number of parties claimed liens upon the same land, and one of them sought, by superior diligence in the prosecution of a suit, to foreclose his lien, and by purchase of the whole land, under the judgment of foreclosure, to appropriate to lfis lien the whole fund, to the exclusion of the rest, under circumstances which this court deemed contrary to equity and good conscience. That is the principle of the decision. The facts were, that an executor, not subject to the County Court, as a means of dividing the land between devisees, sold it, giving a bond for title, and took notes to the respective devisees, according to their interests respectively in the land sold, which they accepted. One of them sued the purchaser, bought in the land, under
So in the case now under consideration: the defendants, as against the Hen of Phelps & Co., held an interest in the whole of the land, by virtue of the sale under Kobertson’s judgment and foreclosure of his vendor’s Hen, and not to the one fourth or any other fractional part of the land. If Phelps & Co.
This charge of the court, complained of by the defendants, and assigned as error by them, so as to require it to be passed on, may have produced a result not really prejudicial to them. That depends upon facts not developed in this case in such way as to be the subject of consideration by this court—such as the value of the land, and the respective amounts each may be entitled to out of the common fund.
We are of opinion that the charge is erroneous, and sufficient ground for the reversal of the judgment.
The assignment of error, as to the estoppel of plaintiffs, by their alleging that their mortgage was worthless in the suit instituted by them against attorneys for alleged negligence in the examination of the title of Cumby to the land, is not tenable.
It was not a representation addressed to defendants, or to any one else, to induce any action upon it in reference to the land. It can hardly be presumed to have been so intended, or that any one could have supposed it to have been so intended. (Bigelow on Estoppels, 480; Burleson v. Burleson, 28 Tex., 416.)
As to the error assigned in the exclusion of the deed from Cumby to James, it may be remarked, that in this suit plaintiffs did not seek to recover the possession, or directly a title to the land, which is the class of cases in which we find that
The other questions in the case may not arise upon another trial.
The judgment is reversed and the cause remanded.
Reversed and remanded.