25 Tex. 778 | Tex. | 1860
This suit was instituted by J. W. Flannegan against ■one J. W. Ivey, and W. B. Wynn, and his wife, Sarah A. Wynn. The petition alleges that some years before the institution o‘f this
The court submitted special issues to the jury. The jury found, in substance, that Ivey executed the note sued on to Flannegan ; that the note was given for the eighty acres of land in part; that Flannegan had been surety for Wynn and wife and had paid their debt; that Wynn agreed with Flannegan, and that Mrs. Wynn ratified the agreement by signing the title bond to Ivey that if Flannegan would convey the eighty acres of land to Ivey, the note to Flannegan should be a lien on the whole two hundred and
We are of opinion that there is error in the judgment of the court below. The note sued on by the plaintiff recites on its face that it is given for the purchase money of the eighty acres of land. The note itself is therefore a palpable contradiction of the effect which is claimed for the title bond from Wynn and wife to Ivey. The recital in the title bond that a part of the consideration money should be paid by Ivey to Flannegan, is not in itself inconsistent with the declaration on the face of the note, that the seven hundred and forty-seven and ninety-three one-hundredths dollars was the purchase money of the eighty acres of land conveyed by Flannegan to Ivey. The objection which was taken by the counsel for the defendants to the parol testimony which was introduced to show that Wynn agreed with Flannegan that he should have a lien on the whole of the land, ought to have been sustained. The testimony was inadmissible, first, because its effect was to vary the terms of the contract as shown by the note and title bond taken together; secondly, because it proposed to establish a lien upon land, not by showing such facts as would give rise to the vendor’s lien, but by showing that the parties had agreed that other facts should give the plaintiff the same rights as if he were indeed the vendor of the whole of the land; and lastly, the testimony was inadmissible to affect the homestead rights of Mrs. Wynn, because it was not pretended that she was a party to the agreement which the testimony was introduced to establish. A vendor’s lien upon land is not established by proof that parties agreed that one of them should have' a vendor’s lien upon certain land. Such a lien arises by operation of law where certain facts exist. If the facts do not exist, the vendor’s lien
Reversed and remanded.