Turner v. Phelps & Co.

Roberts, Chief Justice. The court charged the jury, in effect, that the defendants, holding under the sheriff’s deed, given upon the sale of the land, under the judgment against Cumby, in favor of Robertson, enforcing the vendor’s lien — 259 — for the balance of the purchase-money adjudged to be due to Robertson from Cumby for said land, could derive a title to only one undivided fourth of said land, by virtue of said sale; and that the undivided three fourths of the land would be subject to the appellee’s mortgage, if the proof of its existence was satisfactory. The verdict and judgment were rendered in accordance with this charge. Defendants assign this charge as error, cominitted to their prejudice. The facts, mainly, on which this charge is based, are, that Messrs. Stedman, Jones, Hollingsworth, and Robertson, being the owners in common of two adjacent tracts of land, sold them to Cumby, gave to him a joint bond for title ■ upon Ms paying them fifteen hundred dollars, secured by Ms note executed to them for that amount; that Cumby, having paid all of the money due on said note, except $165.30, wMch was due to Robertson on his part of the note, he, Cumby, on the 1st of October, 1860, executed to said Robertson Ms note for said amount, the other parties having then been paid in full their respective shares thereof. Afterwards, Cumby executed Ms mortgage upon said land in favor of Phelps & Co., to secure their debt against him, on the 29th of October, 1866, which was duly recorded; that afterwards, to wit, on the 9th of April, 1869, Robertson brought suit against Cumby, on the said note, and obtained a judgment for the same, with a decree for the foreclosure of his vendor’s lien upon the land, under wMch judgment the land was sold and purchased by Mrs. Adriana E. Spivey, under whom the defendants, who have appealed in this case, hold by deeds of purchase and by possession. Phelps & Co. were not made parties in the suit of Robertson v. Cumby Supposing these facts to have been established to the satisfaction of the jury, did they authorize such a charge, as the correct rule, in adjusting the respective rights of the parties ? We tMnk not. As between Robertson and Cumby, the whole of the land was subject to the payment of the pur — 260 — chase-money until the last dollar was paid. There was no question as to the lien, which attached to this note, as between Robertson and his former joint owners in the land, for they had been paid, and there were no rights, legal or equitable, to be settled in that suit between them. Cumby could not, and did not set up any claim that the lien did not extend to and cover the whole of the land, for the payment of the last dollar of the purchase-money, by reason of his having paid the other joint owners. Ebr could Phelps & Co. have done so, if they had been made parties to the suit, as they should have been. They, in the assertion of their claim, if they had been made parties to that suit, should have paid off, or tendered payment of, the amount of the prior lien, in the event of it being established, or at least procured an adjustment of the extent and priority of the respective liens, in the judgment of the court, upon the final determination of the suit. The purchaser, under Robertson’s sale, acquired the legal title, if Cumby had it, to the whole of the land. And Phelps & Co., if their mortgage was a valid and subsisting hen, had an equity in the whole of the land. In support of this charge of the court, we are referred to the case of McDonough v. Cross, (40 Tex., 251,) which is not at all in point applicable to this case. That was a very complicated case, in its facts, wherein a number of parties claimed liens upon the same land, and one of them sought, by superior diligence in the prosecution of a suit, to foreclose his lien, and by purchase of the whole land, under the judgment of foreclosure, to appropriate to lfis lien the whole fund, to the exclusion of the rest, under circumstances which this court deemed contrary to equity and good conscience. That is the principle of the decision. The facts were, that an executor, not subject to the County Court, as a means of dividing the land between devisees, sold it, giving a bond for title, and took notes to the respective devisees, according to their interests respectively in the land sold, which they accepted. One of them sued the purchaser, bought in the land, under — 261 — Ms judgment, the other lien creditors, not being joined in the suit brought by him, brought suit to recover the land, and the others intervened. There were other matters complicating the case. In the opinion, it is said: “Under such circumstances, the lien for the payment of the notes, whatever may he its character, must be regarded as a security in favor of each of them to the extent of their respective interest in the land.” Again: “All of the creditors, (having such Hens,) unless the peculiar facts excuse a departure from the rule, are necessary parties to a suit to enforce the Hen.” And again: “ Certainly, one of the creditors cannot, merely by a suit in his own behalf, seize upon and appropriate to his own benefit the entire security or trust fund.” Thus it will be seen, that was a controversy between Hen holders, each endeavoring to obtain a share of the common fund, to which they had an equal right, tM’ough similar and cotemporaneous liens, and wMch common fund one of them was seeking to exclusively appropriate. In that ease, the purchaser from the executor bought the land again, when it was sold under a judgment, rendered against the executor, for a debt due by the testator. Tliis court held, that the purchaser acquired no absolute title to the land by tins last purchase, as the executor had substantially given over the beneficiary interest in the land to the devisees, before the judgment was rendered, and before the sale under it, but, as he had paid a debt, for , which the whole of the land stood bound, in preference to the rights of the devisees holding the notes, he should be subrogated to the rights of the judgment creditor, and that, upon a resale of the land, his claim should he first paid. The same principle was announced in the case of Harrison v. Oberthier, 40 Tex., 385. So in the case now under consideration: the defendants, as against the Hen of Phelps & Co., held an interest in the whole of the land, by virtue of the sale under Kobertson’s judgment and foreclosure of his vendor’s Hen, and not to the one fourth or any other fractional part of the land. If Phelps & Co. — 262 — had on record a valid subsisting mortgage upon the land at the time of the institution of Robertson’s suit so as that he had actual or constructive notice of it, and they were not joined in the suit, they are riot precluded from asserting their hen as against those who hold under said judgment and sale, but in doing so they must satisfy the defendant’s interest thus derived in the whole of the land, and not in a part of it only. It has been decided by this court, that in such a case the purchaser at such a sale, under such circumstances, does not acquire an absolute title to the land, as against a' subsequent incumbrancer. (Byler v. Johnson, 45 Tex., 509; Preston v. Breedlove, 45 Tex., 47.) This charge of the court, complained of by the defendants, and assigned as error by them, so as to require it to be passed on, may have produced a result not really prejudicial to them. That depends upon facts not developed in this case in such way as to be the subject of consideration by this court—such as the value of the land, and the respective amounts each may be entitled to out of the common fund. We are of opinion that the charge is erroneous, and sufficient ground for the reversal of the judgment. The assignment of error, as to the estoppel of plaintiffs, by their alleging that their mortgage was worthless in the suit instituted by them against attorneys for alleged negligence in the examination of the title of Cumby to the land, is not tenable. It was not a representation addressed to defendants, or to any one else, to induce any action upon it in reference to the land. It can hardly be presumed to have been so intended, or that any one could have supposed it to have been so intended. (Bigelow on Estoppels, 480; Burleson v. Burleson, 28 Tex., 416.) As to the error assigned in the exclusion of the deed from Cumby to James, it may be remarked, that in this suit plaintiffs did not seek to recover the possession, or directly a title to the land, which is the class of cases in which we find that — 263 — an outstanding title in another may be shown in defense of one in possession. Ho ease has been cited of its applicability as a defense to a suit for the enforcement of a mortgage lien. The other questions in the case may not arise upon another trial. The judgment is reversed and the cause remanded. Reversed and remanded.