Stansberry v. Booghery

*249 LEVY, J. (after stating ■ the facts as above). By the first and second assignments of error appellant makes the contention that under the evidence he was entitled to have judgment for the land sued for, and the court erred in directing a verdict against him. The facts are undisputed, and the rights of the parties aré made to depend purely upon a matter of law. All the parties claim through and under the conveyance from W. F. Yates and wife to W. M. and Richard Hightower. This deed expressly retained a vendor’s lien on the land to secure the payment of the purchase-money note. The W. E. Taylor Company, Limited, became the assignee of the purchase-money note, and, while such note was in the hands of the said assignee unpaid, the debt became barred by limitation of four years. While the original debt was barred by four years’ limitation, Goodbar & Co., appellant’s vendor, obtained a judgment jointly and severally against the Hightowers and fixed a judgment lien on the premises in suit. The High-towers, as seen in the evidence before set out, conveyed to Goodbar & Co. the said premises. After the Goodbar & Co. judgment lien had attached, W. M. Hightower undertook a renewal of the debt to W. F. Taylor Company, Limited. Subsequently W. F. Taylor Company, Limited, instituted suit upon the renewal note against the Hightowers and prayed for foreclosure of the vendor’s lien on the land purchased by the Hightowers from Yates. The subsequent renewal of the debt by the Hightowers to W. F. Taylor Company, Limited, the assignee of the note, would, as between them, operate as a renewal of the lien given to secure it originally, but, by reason of the specially pleaded and proven statute of limitations in bar of the assignee’s asserted lien, such renewal could not affect the rights of Goodbar & Co. which accrued prior to the renewal and during the time the original debt and the lien were barred by limitation. Cason v. Chambers, 62 Tex. 305. This rule of law being well established, and limitation being pleaded and successfully proven by appellant, it would follow that the appellant’s right in and to the particular land in suit would be superior to appellees by reason of the vendor’s lien. And the controlling question, and the only one remaining, is whether or not the defendants and the intervener, who appeared to defend title for his vendee, have shown superior right to recover the land in suit by reason of the transfer by Yates to intervener of the superior title by virtue of the deed of' Yates to the Hightowers. It is not doubted, as contended for by appellees, that it is a general rule that, though the note be barred by limitation, the later transfer of the legal title to the as-signee of such note is valid, and the assignee takes title superior to that of the original vendee. White v. Cole, 87 Tex. 500, 29 S. W. 759; Jackson v. Bradshaw, 24 Tex. Civ. App. 30, 57 S. W. 879; Anderson v. Silliman, 92’ Tex. 560, 50 S. W. 576; Atteberry v. Burnett, 102 Tex. 118, 113 S. W. 526. But we-further understand that it is equally well settled that bringing suit on the debt and obtaining a decree of foreclosure of the vendor’s lien concludes any assertion of the-superior title remaining in the vendor while the purchase money is unpaid. Van Boeder v. Bobson, 20 Tex. 754; Bartley v. Harris, 70 Tex. 182, 7 S. W. 798; Gardener v. Griffith, 93 Tex. 358, 55 S. W. 314. See Trust Co. v. Beckley, 93 Tex. 267, 54 S. W. 1027. Hence the principle sought to'be applied .by-appel'lees could not obtain in the facts here. The evidence here conclusively establishes; that W. F. Taylor Company, Limited, the-assignee of the vendor’s lien note, brought suit on the debt and obtained a foreclosure of the vendor’s lien. And the evidence further shows that deeds passed between the W. F. Taylor Company, 'Limited, and the-Hightowers in consideration of the full settlement and satisfaction of the judgment, foreclosing the vendor’s lien on the land. It was after this suit was brought by appellant for the land in controversy that the-receiver of the W. F. Taylor Company, Limited, undertook to procure from Yates a transfer of the superior title remaining in-him as vendor while the purchase money is-unpaid. Under the authority above mentioned the obtaining a decree of foreclosure of the vendor’s lien by the assignee concluded any assertion of the superior title remaining in the vendor Yates while the purchase-money is unpaid and therefore appellees could legally predicate no claim on such-instrument against appellant. The court erred in instructing a verdict against appellant and the judgment is therefore reversed and here rendered for appellant with all costs.