Salmon v. Downs

Quinan, J. Com. App. The question presented in this case is whether, when a vendor of land takes notes for the purchase money, and holds a vendor’s lien as secur [247] ity, and afterward indorses and assigns one of the notes and retains the others, and the land is sold to pay the purchase money, has such indorser and assignor a right to share in the proceeds of sale before the note assigned by him is fully paid and satisfied? Whatever uncertainty may have attended the solution of this question hitherto, it is believed that the matter is now settled by the decisions of our court, and that with us the rule is, that where several notes are "given for the same land, having a lien upon it for their payment, and are assigned to different parties, all have equal rights to have satisfaction out of the land, and this without reference to the order in which they may have been assigned or which first matured. Delespine v. Campbell, 52 Tex., 12; Paris Exchange Bank v. Beard, 49 Tex., 363; Robertson v. Guerin, 50 Tex., 317; McDonough v. Cross, 40 Tex., 251; Delespine v. Campbell, 45 Tex., 628. Nor do we think the case is different when the vendor himself may retain one of the notes. There is no presumption arising from the transfer of one or more of them that he intends to waive his right to share pro rata in the common fund for that which he has retained. Of course he may waive his privilege, but that he has done so shall be made to appear by the proof. In White, Smith & Baldwin v. Downs, 40 Tex., 233, it is intimated by Mr. Justice Gray that the assignee might have a preference over the assignor holding the retained note; but in that case the facts appear to be that such was the intention of the parties. And no doubt when this can be fairly inferred from the acts of the parties or the nature of the transaction, the assignee would be entitled to such preference. But where there is nothing to indicate that such a result was contemplated by the parties, and as the several notes have equal liens and are entitled to satisfaction out of the same fund, it is not perceived why, by force of the transfer of some of them, [248] the lien, of the others not transferred is postponed, or that the transfer carries with it a new right to priority of payment which it did not possess before. We are of opinion that the judgment of the court below is correct and ought to be affirmed. Affirmed. [Opinion delivered May 16, 1881.]