Carter v. Attoway

Gould, Associate Justice. This was an action of trespass to try title, in which the plaintiff claimed as purchaser at a [110] sale under a decree enforcing a vendor’s lien, rendered in a suit brought by B. C. H. Johnson against George C. Keys. At the time that suit Avas commenced, Garrison, the defendant in the present case, Avas in possession of a part of the land on which the lien was sought to be enforced, claiming it under a duly recorded deed to himself from Keys. The plaintiff in that suit was certainly affected with notice of Garrison’s claim, and should have made him a party. As he was not made a party, his rights cannot be affected by the foreclosure and sale. At the late Galveston Term it was held, (and the conclusion was arrived at after the question had been for some time before the court in different cases, and had received mature consideration,) that, as against a purchaser of whose claim there is notice, a sale, had under a decree of foreclosure against the original vendee alone, is ineffectual to pass the title. (Preston v. Breedlove, 45 Tex., 47; Byler v. Johnson, 45 Tex., 509.) Although it appears that Garrison was aware of the suit brought by Johnson, and was indeed a witness on the trial, it is not perceived that this should take the case out of the general rule just stated. He was under no obligation to appear in the case. The court beloAV, in its charge, held that Attoway, by his purchase under the decree of foreclosure, was entitled to recover, if Garrison bought the land with notice that any portion of the purchase-money was unpaid. As this ruling is erroneous, and goes to the foundation of the jDlaintiff’s case, it is not material to inquire whether or not the assignment of errors is sufficient to present it. There is a bill of exceptions, and an assignment of error to the admission in evidence of the judgment in the case of Johnson v. Keys. As the court could not know in advance that Garrison would show that he held under a prior conveyance from Keys, of which Johnson had notice, the eAÚdence was properly admitted. In a case where the plaintiff' in his pleadings admits such facts, the judgment is properly ex111 eluded. (Byler v. Johnson, 45 Tex., 509.) But ordinarily the evidence should be admitted, and the jury instructed as to its legal effect. In this case there were no pleadings raising any other issue than that of title, and under such pleadings the plaintiff could not enforce against Garrison any equitable rights which he may have acquired by Ms purchase. (Mann v. Falcon, 25 Tex., 272.) By his purchase he paid off the judgment in favor of Johnson against Keys, and may claim to be subrogated to all the rights which Johnson had to enforce Ms lien against the land in Garrison’s hands. (Harrison v. Oberthier, 40 Tex., 390.) No reason is perceived why he may not so amend Ms pleadings as to set up those eqmties in this case. The judgment is reversed and the cause remanded. Keversed and remanded.