R. B. Godley Lumber Co. v. C. C. Slaughter Co.

LEVY, J. (after stating the facts as above). [1-6] Appellant insists that the final judgment in the action of C. C. Slaughter, Jr., v. R. B. Godley Lumber Company, works an estoppel by res adjudicata against the partios to this suit for the recovery of the same land. It .is believed the contention should be overruled. As decided by the court on the merits of that suit, that as C. C. Slaughter, Jr., was the assignee of the vendor’s lien note without transfer to him of the superior legal title to the land by or through the Kansas City Life Insurance Company, he was not entitled to have the legal title to the land decreed to him in that suit. The judgment merely denied to the plaintiff a recovery, without vesting any title to the land in the defendant. Godley Lbr. Co. v. Slaughter, 171 S. W. 779. It appears, though, in the present ease, that after the final determination of the above suit C. C. Slaughter, Jr., procured a conveyance of the superior legal title to the land from the Kansas City Life Insurance Company, and conveyed the superior legal title to the appellee, who is now the legal owner of the vendor’s lien note. The vendor, as decided, has the superior title until payment by the vendee. Howard v. Davis, 6 Tex. 174. And the vendor has the right to pass the superior legal title to the holder of the unpaid purchase-money notes. Hamblen v. Folts, 70 Tex. 132, 7 S. W. 834. As the vendor may pass the superior title to the holder of the unpaid purchase-money note, then such assignee of the note and superior title may likewise pass such superior title to a subsequent assignee of the same unpaid purchase-money note. And that the transfer of the note and lien and the superior title by the Kansas City Life Insurance Company occurred at different dates would not affect the transferee’s right to recover the land. White v. Cole, 87 Tex. 500, 29 S. W. 759; Jackson v. Bradshaw, 24 Tex. Civ. App. 30, 57 S. W. 878. See Abernethy v. Bass, 9 Tex. Civ. App. 239, 29 S. W. 398. And it is the settled rule that in a suit founded upon a subsequently acquired title the plaintiff is not precluded by a former judgment from asserting such subsequently acquired title. Connolly v. Hammond, 51 Tex. 635; Id., 58 Tex. 21; Rogers v. Southern Pine Co., 21 Tex. Civ. App. 48, 51 S. W. 26. Thus the superior title upon which the present suit is founded having been acquired by C. C. Slaughter, Jr., subsequent to the final adjudication of the former suit, it would follow that neither C. C. Slaughter, Jr., nor his assignee, the appellee, is precluded by the former judgment from asserting such subsequently acquired superior title. [7] The appellant insists that the appellee’s right to recover th'e land by virtue of being the holder of the superior title is barred by the statute of limitations of one year, under Act Special Session of 1913, p. 39 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5695). The note was dated December 5, 1905, due five years after date. The conveyance of the superior title to appellee was made April 15,1915. Article 5694, Vernon’s Sayles’ Statutes, has apifiication, it is believed, to this case. That article provides four years after the maturity of the note as the period of limitation on the right to recover the land by the vendor or his transferee, unless such time should be extended, which was not involved here, under the provisions of article 5695. Adams v. Harris, 190 S. W. 245. The judgment is affirmed. Footnotes [1] ¡S^sFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes