2 Posey 426 | Tex. Comm'n App. | 1882
Here the two notes sued on were executed by appellant to the appellee for the purchase money of the land described in the petition, and Hampton assigned one of the notes to Ledbetter; and they join in the suit to recover the amount upon their respective notes and to foreclose the lien upon the land, as a right in common between them.
The first proposition is that there was a misjoinder of parties plaintiff, and that the court erred in overruling the exception to the petition presenting that question. In this state the rule is the same as in equity; that is, all parties having an interest in the subject-matter may join in the same suit. And there is no objection to the joinder of plaintiffs because they claim different interests, provided the subject-matter is the same. Faulk v. Faulk, 23 Tex., 655. Any person having an interest in the subject-matter which can be affected by the decree may join in the suit. Garrett v. Gaines, 6 Tex., 435. So far as regards the amount sought to be recovered upon their respective notes, neither party is interested in the claim or debt of the other. But each had a common interest in the foreclosure of the lien, to secure the payment of their respective claims. Wooters v. Hollingsworth, 58 Tex., 374; Salmon v. Downs, 55 Tex., 243. Then, so far as the foreclosure of the lien formed the subject-matter of the suit, they were both interested; and under our liberal system, where the primary rule is to adjust all matters in the same controversy where that may be reasonably accomplished, there is no valid objection to their joining as plaintiffs in the suit.
By the allegations- in the petition it is shown that the notes were executed and delivered to Hampton, who was
The objection urged is that it is not alleged that Hampton was the owner and holder of the other note. It is well settled that the title to the land upon which the lien was foreclosed was still in the state for the benefit of the school fund; that no vendor’s lien would arise out of the assignment or sale of the same upon credit. In support of that proposition appellant cites and relies upon Palmer v. Chandler, 47 Tex., 333. In that case a pre-emptor, who had not resided upon or occupied public land for the time prescribed by law to enable him to obtain title, sold the same on a credit, and afterwards undertook to foreclose a vendor’s lien, and the court said: “It would be simply absurd to say that there is a vendor’s lien to secure the payment of the purchase money, when the vendor has no such title or interest in the land sold as served as a consideration for a promise to pay the purchase money, and when the vendee may recover it back if paid.” But in the case of Bybee v. Wadlington (this volume), where a pre-emptor had occupied the land for three years, it was held that the suit could be maintained on a note given to the pre-emptor for his right to the same. This was upon the ground that, having occupied the land for the time prescribed by law, this vested in him such interest or equity in the land as would support the promise. However, this was school land which Hampton had by executory contract purchased from the state under and by virtue of the provisions of the act of July 8, 1879 (R. S. App., 39).
He had so far complied with the terms of that act as to make the first payment and deposit with the proper authorities his obligation for the deferred payment, and the land had become subject to taxation, etc. Hampton was by the terms of the act authorized to sell and assign his right to it. Therefore there is no similarity between the case and those cited by appellant. Here Hampton undoubtedly had.
Judgment affirmed.