Pitman v. Henry

Bonner, Associate Justice. There are several alleged errors assigned, some of which, under the present rules of practice, and which apply to this case, are too general to require consideration. The others will not be considered in the order presented. The third and fourth errors assigned present as error the admission in evidence of the note made by the said Lewis H. Carver for the sum of |400 and the judgment of the court thereon against his heirs. In the suit as originally brought, as an action of trespass to try title, under former decisions of this court this judgment, the note having been merged into it, would not have been admissible in evidence against the defendant, as he was not a party thereto. (Preston v. Breedlove, 45 Tex., 47; Carter v. Attoway, 46 Tex., 110.) Under the amended petition, the action was changed from one of trespass to try title to an equitable proceeding to en [364] force the vendor’s lien. In the case as then presented, we are of opinion, without deciding what should be its legal effect, that the testimony was admissible as part of plaintiff’s cause of action. The fifth alleged error raises the question of the admissibility of the sheriff’s deed to the plaintiff under the purchase by virtue of the order of sale, substantially, because of variance between the same and the judgment against the heirs of Carver. This deed, although referred to in the hill of exceptions, is not set out in the record, either as an exhibit to the pleadings or as part of the statement of facts, and hence we cannot advisedly pass upon this objection. We do not think the alleged error assigned, is well taken, that the court should not have given judgment for the plaintiff, because under his warranty title to Lewis II. Carver the subsequently-acquired title of the plaintiff under the sale enforcing the vendor’s lien against the heirs of said Carver inured to the benefit of defendant, who also claimed under a warranty deed from Lewis II. Carver, vendee of plaintiff the principle, that to avoid circuity of action the after-acquired title of a vendor who conveyed with covenant of general warranty of title will inure to the vendee and those claiming under him, does not apply where this after-acquired title is based upon the enforcement, in a proper case, of the lien for the purchase-money in favor of the original vendor. The alleged errors, substantially, that the court erred in setting aside the sheriff’s sale to plaintiff, made under the judgment, enforcing the vendor’s lien against the heirs of Lewis II. Carver, and ordering a sale of the land to again enforce the vendor’s lien, because there were no sufficient pleadings to authorize such a decree, we believe to he well taken. We are of opinion that, although a case might arise in which it would be proper to set aside a former sale enforcing [365] the vendor’s lien, and order a new one, yet, to authorize this, all the parties in interest should be before the court, and the necessary pleadings should be made. In a case like the one now under consideration, where it is sought to establish by parol evidence the vendor’s lien against a subsequent purchaser who has been in possession of the land for years, by virtue of a legal title derived from and under the holder of this lien, the plaintiff, in the first instance, should by full and appropriate allegations set out proper grounds for equitable relief, and should then sustain these allegations by clear and satisfactory evidence. The pleadings in this case were not sufficient to warrant the judgment rendered. As the cause will be remanded, we make no comment on the evidence adduced. We are further of opinion, that as the interests of the heirs of Lewis H. Carver might be affected by the subsequent suit, they were necessary parties thereto. The question of stale demand was not raised by the pleadings: and as no authorities have been cited in support of the plea of the statute of limitations of four years set up in reply to the amended petition, and as a bar to the claim for the vendor’s lien sought to be enforced thereunder, we give no opinion upon this issue. Judgment is reversed and the cause remanded. Reversed and remanded.