| Tex. | Jul 1, 1872
The appellant brought this suit in the District Court to recover the possession of Lot No. 2, in Block No. 1, in the town of Denton.
John L. Love joy purchased said lot, on the 23d day of March, 1859, from P. P. Scruggs, giving his note for the sum of eight hundred dollars, payable on the 1st day of January, 1860, and signed as security by James M. Smoot. There was an express contract between the parties reserving the vendor’s lien, and this contract was witnessed by the note, which note was recorded in the office of the county clerk of Denton county, in. the miscellaneous • records, on the 28th day of March, 1859. Scruggs indorsed the note to Lawler, who brought suit on it in the District Court, and at the March term, 1861, recovered a judgment for principal and interest, and also obtained a decree for the foreclosure of the vendor’s lien. Love joy paid about seven hundred dollars on the judgment, the day it was rendered. There was no execution or order of salo, until the 11th day of January, 1869, and the property was sold under the order of court, on the 15tli of March, 1869, when Murphy and Daugherty became the purchasers.
But, on the 15 th day of June, 1864, Love joy sold the property to Wm. C. Baines, and on the 27th of March, 1866, Baines sold to Williams, the appellant.
The cause was tried in the District Court, resulting in a judg
First. Was the judgment and decree of the court dormant on the 11th day of January, 1869 ?
Second. Did Lawler’s judgment against Lovejoy, and the decree of the court to enforce the lien, continue and subsist against the property, until the same was sold under the order of court?
Third. Were Baines and Williams innocent purchasers fora valuable consideration, without notice ?
These propositions are all answered by the prior decisions of this court. In Scogin v. Perry, 32 Tex., 31" court="Tex." date_filed="1869-07-01" href="https://app.midpage.ai/document/hart-v-russell-4890729?utm_source=webapp" opinion_id="4890729">32 Texas, 31, the court hold that the act of November 9th, 1866, repeals Article 4608, so far as the two acts are inconsistent with each other, and that the judgment of a court of record, by force of the. act of 1866, will be kept alive, although no execution be issued upon it.
The act of February 14th, 1860, was in force when the judgment and decree were rendered in the ease of Lawler against Lovejoy; and this act also provided that no judgment should become dormant until more than ten years had elapsed, after the issuance of execution. This provision of the two acts is substantially the same in each, and the authority of Scogin v. Perry applies to both.
On the 7th day of December, 1861, the Legislature enacted the first of the series of stay laws. Subsequent enactments, the Ordinance of the Convention of 1866, and executive proclamations continued the inhibition until February, 1868, when the Supreme Court declared the stay laws unconstitutional.
In the case of Oravans v. Wilson, decided at the present term (35 Tex., 52" court="Tex." date_filed="1872-07-01" href="https://app.midpage.ai/document/cravans-v-wilson-4891223?utm_source=webapp" opinion_id="4891223">35 Texas, 52), we have approved the doctrine of Scogin v. Perry, and declared that the time during which the stay laws were in force shall not be computed, to fix laches upon a party not otherwise guilty. But nine months had elapsed between the rendition of the Lovejoy judgment- and the pas
There is no rule of construction which this court has ever heretofore adopted, which would declare the Lawler judgment dormant at the date of the sale from Lovejoy to Baines, in 1864, nor at the time the appellant purchased from Baines, in 1866, Lawler having had but nine months in which he could have issued execution. The judgment and decree, being in fall force and virtue, and open on the records of the court, must affect Lovejoy’s vendee, and those claiming under him, with notice. They stand much in the position of purchasers pendente lite.
In the case of Hargrove v. De Lisle, 82 Texas, 170, the court held as follows: “ A levy in February, 1861, of an execution “ emanating from a judgment of a United States court, created “ a lien which subsisted, it seems, without sale or further process, “ until the issuance of another execution in May, 1867 ; and a “ person who, in 1864, purchased the land levied on, was chargea“ble at the time of his purchase with constructive notice of the “ levy and its lien, and could only acquire title subject thereto. “ A person who bought land in 1864, with constructive notice of “ such a lien, assumed, with respect to the land, the exact posi- “ tion of his vendor, the judgment debtor, and cannot claim that “ the land has become exonerated of the incumbrance, by the “failure of the judgment creditor to have the judgment re-in- “ scribed before its lien expired. Had he bought the land after “the lien had lapsed for want of a new registration of the judg“ment, he might have occupied a different attitude.”
The equitable lien of the vendor follows the land in the hands of the vendee, by implication of law, unless it appear that the vendor intended to abandon it, by taking other security for the payment of the purchase-money.
In this “case Lovejoy gave Scruggs personal security for the eight hundred dollar note, and, if this fact stood alone, we should hold that there was an abandonment of the vendor’s lien, if there had been no expressed contract reserving the lien;
But it is claimed, that by the second section of the act of February 14th, 1860, the judgment did not become a lien on the land unless it was recorded in the office of the county clerk. This is doubtless true of judgments' in personam / but a compliance with this law was intended to give a lien, and could not be required where an equitable lien already existed, and had been ascertained by the decree of the court. The rendition of a judgment upon a note secured by a vendor’s lien, does- not merge the equitable rights of the plaintiff in the judgment in personam ; they remain to be enforced by the decree in rem.
Under the judgment in personam, the amount due the plaintiff is ascertained, and the decree in rem subjects the property encumbered by the lien to the payment of that amount. In the case of Briscoe v. Bronaugh, 1 Tex., 326" court="Tex." date_filed="1846-12-15" href="https://app.midpage.ai/document/briscoe-v-bronaugh-4886874?utm_source=webapp" opinion_id="4886874">1 Texas, 326, the doctrine of notice as applicable to this case, in the effect which it has on the rights of the parties, is very ably discussed. Under the question, is the plaintiff’s title affected with notice of a prior equity ? the court say:
“ The effect of bringing home to the plaintiff notice of the “ defendant’s lien would be, that the former can derive no “ benefit from his legal title as against the latter. A purchaser “ with notice of a lien, takes the estate, if at all, subject to the “ prior equity, and cannot set up his title against the person “ holding it, until he has first paid off and discharged the in- “ cumbrance. The - notice is said to raise a trust in him to ££ the amount of the lien. And if (as in the present case) the “ purchaser resists, and seeks to overcome the claims of the “ party having the prior equity, and it be made to appear “ that he purchased with notice, he will be held a trustee for the “ benefit of the party whose rights he has thus sought to de£C fraud and defeat. 2 Sug. Vend., 279. The ground of the “ doctrine is stated by Lord Hardwicke to he, that £ The taking ££ £ of a legal estate, after notice of a prior right, makes a per-*177 “ 1 son a mala fide purchaser; and not that he is not a pur- “ £ chaser for a valuable consideration in every other respect. “ ‘ This is a species of fraud or dolus malus itself.’ 3 Atk., 646.”
The main point decided in this case is this: The vendee holds in trust for the vendor until the purchase-money is paid, and this trust attaches to the land in the hands of subsequent purchasers with notice.
We think the appellant is charged with notice in this case; and we do not think it important to give any further reason for affirming the judgment of the District Court; which is done.
Affirmed.