Thorn v. Dill

Stayton, Associate Justice. It is apparent that, under the evidence, the appellant has no right under the homestead claim set up by him; for there was not only an intention to abandon the land as a homestead, but there was an actual abandonment, and another homestead was acquired and used by him from some time late in the year 1878 until some time in the spring of 1881. It may be true that, as the sale of the land by Thorn to Forsythe was by parol, that technically no vendor’s lien existed; but it appears from the evidence that it was agreed between Thorn, Dill and Forsythe, that Forsythe should take up the two notes which Thorn had given to Dill, and that instead of the same Forsythe should execute to Dill his notes for a like sum, and that such notes [148] should be secured by a lien upon the land sold by verbal sale to Forsythe by Thorn. Under such facts, Thorn could not be heard to say that such a conveyance had not been made by him to Forsythe as would support and raise even a vendor’s hen, he having induced Dill to claim that such a state of facts existed. Having consented and agreed that Forsythe should give the hen, Dill having cancelled the notes of Thorn and taken those of Forsythe in their stead, relying upon Thorn’s agreement that a hen should exist upon the land to secure those notes; the estate of Forsythe being insolvent and the laud which all the parties intended the hen 4-should be given upon having again gone into the possession of Thorn, and all claim thereto by the heirs of Forsythe having been surrendered, the denial of the existence of the hen by Thorn cannot be heard, so long as he holds on to all of the benefit df the contract which he seeks to repudiate. Whatever form a contract may take, the real question is, what was the intention of the parties ? Under the facts of this case it is certainly true that Thorn intended, or that he induced Dill and Forsythe to beheve that he intended' Dill should have a hen upon the land to secure the notes executed by Forsythe to him. If he so intended, under the facts in proof, effect must be given to that intention. If he did not so intend, but by his words and acts induced Dill and Forsythe to beheve that he so intended, then he will be held to the óontract made by Forsythe, in effect under his instructions and for his benefit, as though the contract evidenced by the notes of Forsythe, in so far as the same was intended to create a hen, had been made by himself. The fact that the notes under the agreement of all the parties were executed to Dill instead of to Thom would [149] not have prevented the existence of a vendor’s lien to secure the same had the facts been as Dill was authorized to believe they were. Flanagan v. Cushman, 48 Tex., 241. [Opinion delivered January 24, 1882. There being no homestead right which could have prevented Thorn from giving a lien upon the land, it must be held that the lien given by Forsythe under the agreement of Thorn that he should do so, is as binding upon Thorn as though made by himself. The lien given is not technically a vendor’s lien, but it must have the same effect. The judgment is affirmed. Affirmed.