GAINES, Associate Justice.
This suit was before the court at a former term, and is reported in 78 Texas, 109. Its nature and the issues made by the pleadings and evidence appear sufficiently in the report of the case as there presented. The leading facts may also be gleaned from the opinion there reported.
Upon the trial from which the appeal now under consideration was -prosecuted, the judge, who tried the case without a jury, filed his conclusions of fact and law, and the appeal questions only the correctness of his conclusions of law upon the facts so found by him.
Both the plaintiffs and the defendants claim title to the land in controversy through Michael Erskine as the common source. The tract is a part of six leagues known as the Capota grant. In October, 1853, M. Erskine executed a mortgage upon the six leagues and other lands, to secure a debt for a large sum of money due one Allen T. Caperton. In April, 1854, Erskine executed a mortgage upon the Capota leagues to secure a note made by himself, A. N. Erskine, and John P. Erskine, for the -sum of $1880.80, payable to J. C. Ehringhaus. It is to be inferred from the pleadings that the note was given to J. C. Ehringhaus as trustee for the plaintiffs, as the heirs of J. C. B. Ehringhaus.
In May, 1860, M. Erskine also executed to the heirs of J. C. B. Ehringhaus a deed to 1200 acres of the Capota leagues. The plaintiffs are the heirs mentioned in the deed, except one, who is an heir of an heir. The tract so conveyed is the subject matter of this suit. An issue was made as to the acceptance of this deed, but the court finds distinctly that it was executed.
M. Erskine having died, and administration having been granted upon -his estate, Caperton, the mortgagee, in the year 1868, brought suit against his administrator for a foreclosure of his mortgage upon the Capota leagues and other lands, in the District Court of Guadalupe County, and obtained a decree for the sale of the mortgaged premises for the satisfaction of his debt. The plaintiffs were not made parties to the suit. The land was sold in pursuance of the decree, and John P. Erskine, through ■whom defendants claim title, became the purchaser.
Whether the administrator had rejected the claim when the suit was •brought, or whether it had been allowed, and the suit was merely to foreclose the mortgage, the court’s findings do not show. Neither does it -clearly appear from the findings whether the District Court undertook to •enforce its own decree, or whether that decree was certified to the County ■Court, and the sale made under the order of that court. But the answer alleges that the District Court ordered the sale of the land, and that “ the ■same was sold in obedience to said order, and was purchased by John P. Erskine,” etc.
This brings us to the first question in the case, namely, the validity of the sale of the land to John P. Erskine under the decree of foreclosure.
The judgment was rendered and the sale took place while the Act of March 20, 1848, in relation to the estates of deceased persons, was in force. It is expressly held in Meyers v. Evans, 68 Texas, 466, that in a proceeding to establish a claim against a decedent’s estate which is secured by a. mortgage, the District Court had no power to order a sale of the property for the satisfaction of the debt. The judgment must be certified to the-County Court for observance. All claims must be classified, and the latter court has exclusive original jurisdiction to make the classification. The sale in the case cited was made by virtue of a decree rendered in-1867, and was held to pass no title.
It is insisted on behalf of. defendants in error, that the court’s findings-do not show that the sale was made under an order of the District Court. The finding is not clear upon this point. But we think the fair intendment from the defendant’s answer is that that court made the order qf I sale. The defendants do not allege in their answer that the decree tif' the District Court was certified to the County Court, and that the land was sold under the orders of the latter court. If the matter were doubtful , it should be resolved against the party pleading it. But in our view of the case we deem it unimportant whether the order of sale proceeded, from the one court or the other. M. Erskine having conveyed the land in question, it was not a part of his estate, and the County Court, as has-been held, had no jurisdiction over it, and no jurisdiction to order a sale-of the land. Schmeltz v. Gary, 49 Texas, 49. And for precisely the-same reason, the District Court had no power to order its sale simply as the property of his estate; the estate having no title, legal or equitable, in it. This must be so, even if we should hold that a mortgage-against the estate of a deceased person could be foreclosed through the-process of the District Court.
But the sale in question, as to the plaintiffs, must be held of no effect, for another reason. i
The deed from M. Erskine to the plaintiffs, conveying the land in controversy, was placed upon record before the suit to foreclose the mortgage was brought. It has been settled in this State by numerous decisions, that when the mortgagor has conveyed the mortgaged premises, and the mortgagee has notice of the conveyance, the grantee of the mortgagor is a necessary party to a suit for foreclosure, and a sale of the-property under a decree to which he is not a party does not affect his-right. Hall v. Hall, 11 Texas, 526; Buchanan v. Monroe, 22 Texas, 537; Mills v. Traylor, 30 Texas, 7; Preston v. Breedlove, 45 Texas, 47; Railway v. Whitaker, 68 Texas, 630; Byler v. Johnson, 45 Texas, 509; King v. Brown, 80 Texas, 276; Peters v. Clements, 46 Texas, 125; Wright v. Wootters, 46 Texas, 382. This seems to be the uniform rule of decision in other jurisdictions. Wiltsie on Mort. Foreclosure, new ed., sec. 126, p. 145, and note 2. The author cited says: “ The cases-
are uniform in holding, that a purchaser at a foreclosure sale acquires no title whatever to the mortgaged premises, unless the owner of the equity of redemption is made a party, although the mortgagor and subsequent encumbrancers may have been made defendants. Such a purchaser remains a stranger to the title to the land, and the sale operates only as an equitable assignment of the mortgage to him.” Id., sec. 127.
We have a line of cases which hold, that a vendor in an executory contract for the sale of land, who has sued his vendee to enforce the lien without making a subsequent purchaser a party, and has bought the land under a decree of foreclosure in such a suit, may recover of such purchaser the land, unless he pay the purchase money. Ufford v. Wells, 52 Texas, 612; Cattle Co. v. Boon, 73 Texas, 548; Foster v. Powers, 64 Texas, 247.
A deed otherwise absolute upon its face, which expressly reserves a lien for the payment of the purchase money, is treated as an executory contract, and as coming within this rule. These decisions rest upon this doctrine, that in such a case the vendor holds the paramount title until the purchase money is paid, and that after default he may sue for and recover the land from his vendee or any one holding under him.
These cases have become a rule of property in this State, which is binding upon the courts.
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GAINES, Associate Justice.
This suit was before the court at a former term, and is reported in 78 Texas, 109. Its nature and the issues made by the pleadings and evidence appear sufficiently in the report of the case as there presented. The leading facts may also be gleaned from the opinion there reported.
Upon the trial from which the appeal now under consideration was -prosecuted, the judge, who tried the case without a jury, filed his conclusions of fact and law, and the appeal questions only the correctness of his conclusions of law upon the facts so found by him.
Both the plaintiffs and the defendants claim title to the land in controversy through Michael Erskine as the common source. The tract is a part of six leagues known as the Capota grant. In October, 1853, M. Erskine executed a mortgage upon the six leagues and other lands, to secure a debt for a large sum of money due one Allen T. Caperton. In April, 1854, Erskine executed a mortgage upon the Capota leagues to secure a note made by himself, A. N. Erskine, and John P. Erskine, for the -sum of $1880.80, payable to J. C. Ehringhaus. It is to be inferred from the pleadings that the note was given to J. C. Ehringhaus as trustee for the plaintiffs, as the heirs of J. C. B. Ehringhaus.
In May, 1860, M. Erskine also executed to the heirs of J. C. B. Ehringhaus a deed to 1200 acres of the Capota leagues. The plaintiffs are the heirs mentioned in the deed, except one, who is an heir of an heir. The tract so conveyed is the subject matter of this suit. An issue was made as to the acceptance of this deed, but the court finds distinctly that it was executed.
M. Erskine having died, and administration having been granted upon -his estate, Caperton, the mortgagee, in the year 1868, brought suit against his administrator for a foreclosure of his mortgage upon the Capota leagues and other lands, in the District Court of Guadalupe County, and obtained a decree for the sale of the mortgaged premises for the satisfaction of his debt. The plaintiffs were not made parties to the suit. The land was sold in pursuance of the decree, and John P. Erskine, through ■whom defendants claim title, became the purchaser.
Whether the administrator had rejected the claim when the suit was •brought, or whether it had been allowed, and the suit was merely to foreclose the mortgage, the court’s findings do not show. Neither does it -clearly appear from the findings whether the District Court undertook to •enforce its own decree, or whether that decree was certified to the County ■Court, and the sale made under the order of that court. But the answer alleges that the District Court ordered the sale of the land, and that “ the ■same was sold in obedience to said order, and was purchased by John P. Erskine,” etc.
This brings us to the first question in the case, namely, the validity of the sale of the land to John P. Erskine under the decree of foreclosure.
The judgment was rendered and the sale took place while the Act of March 20, 1848, in relation to the estates of deceased persons, was in force. It is expressly held in Meyers v. Evans, 68 Texas, 466, that in a proceeding to establish a claim against a decedent’s estate which is secured by a. mortgage, the District Court had no power to order a sale of the property for the satisfaction of the debt. The judgment must be certified to the-County Court for observance. All claims must be classified, and the latter court has exclusive original jurisdiction to make the classification. The sale in the case cited was made by virtue of a decree rendered in-1867, and was held to pass no title.
It is insisted on behalf of. defendants in error, that the court’s findings-do not show that the sale was made under an order of the District Court. The finding is not clear upon this point. But we think the fair intendment from the defendant’s answer is that that court made the order qf I sale. The defendants do not allege in their answer that the decree tif' the District Court was certified to the County Court, and that the land was sold under the orders of the latter court. If the matter were doubtful , it should be resolved against the party pleading it. But in our view of the case we deem it unimportant whether the order of sale proceeded, from the one court or the other. M. Erskine having conveyed the land in question, it was not a part of his estate, and the County Court, as has-been held, had no jurisdiction over it, and no jurisdiction to order a sale-of the land. Schmeltz v. Gary, 49 Texas, 49. And for precisely the-same reason, the District Court had no power to order its sale simply as the property of his estate; the estate having no title, legal or equitable, in it. This must be so, even if we should hold that a mortgage-against the estate of a deceased person could be foreclosed through the-process of the District Court.
But the sale in question, as to the plaintiffs, must be held of no effect, for another reason. i
The deed from M. Erskine to the plaintiffs, conveying the land in controversy, was placed upon record before the suit to foreclose the mortgage was brought. It has been settled in this State by numerous decisions, that when the mortgagor has conveyed the mortgaged premises, and the mortgagee has notice of the conveyance, the grantee of the mortgagor is a necessary party to a suit for foreclosure, and a sale of the-property under a decree to which he is not a party does not affect his-right. Hall v. Hall, 11 Texas, 526; Buchanan v. Monroe, 22 Texas, 537; Mills v. Traylor, 30 Texas, 7; Preston v. Breedlove, 45 Texas, 47; Railway v. Whitaker, 68 Texas, 630; Byler v. Johnson, 45 Texas, 509; King v. Brown, 80 Texas, 276; Peters v. Clements, 46 Texas, 125; Wright v. Wootters, 46 Texas, 382. This seems to be the uniform rule of decision in other jurisdictions. Wiltsie on Mort. Foreclosure, new ed., sec. 126, p. 145, and note 2. The author cited says: “ The cases-
are uniform in holding, that a purchaser at a foreclosure sale acquires no title whatever to the mortgaged premises, unless the owner of the equity of redemption is made a party, although the mortgagor and subsequent encumbrancers may have been made defendants. Such a purchaser remains a stranger to the title to the land, and the sale operates only as an equitable assignment of the mortgage to him.” Id., sec. 127.
We have a line of cases which hold, that a vendor in an executory contract for the sale of land, who has sued his vendee to enforce the lien without making a subsequent purchaser a party, and has bought the land under a decree of foreclosure in such a suit, may recover of such purchaser the land, unless he pay the purchase money. Ufford v. Wells, 52 Texas, 612; Cattle Co. v. Boon, 73 Texas, 548; Foster v. Powers, 64 Texas, 247.
A deed otherwise absolute upon its face, which expressly reserves a lien for the payment of the purchase money, is treated as an executory contract, and as coming within this rule. These decisions rest upon this doctrine, that in such a case the vendor holds the paramount title until the purchase money is paid, and that after default he may sue for and recover the land from his vendee or any one holding under him.
These cases have become a rule of property in this State, which is binding upon the courts. If sustainable at all, it must be upon the ground that the vendor, notwithstanding his suit against his vendee, has not lost his right to elect to disaffirm the contract and to claim the land. This is the ground of the doctrine as suggested in Cattle Co. v. Boon, supra.
It would seem that when default has been made, and the occasion for an election of remedies has once arisen, and the vendor has seen fit to proceed for the purchase money, he ought, as a general rule, to be precluded from claiming the land. But it has been held, that if after suit the vendee pleads the statute of limitation, and thereby refuses to do equity as this contract requires, it is such a repudiation of the contract on his part as will enable the vendor to amend his pleadings, and to assert his right to the land. And it may be, that since the last purchaser is not a party to the foreclosure suit, and is not estopped by the judgment and sale, the vendor is not estopped either by his election to sue his vendee alone or by the result of that suit. An estoppel must be mutual. However that may be, the cases under consideration proceed upon the ground that the plaintiff is entitled to recover by virtue of his original title, and not by virtue of any title he has acquired by a sale under a decree of foreclosure in a suit to which the last purchaser was not a party.
These cases are very clearly distinguishable from those previously cited, in which it was held that the purchaser from a mortgagor is not affected by a foreclosure suit to which he is not a party. The mortgagor in this State has the legal title, and conveys it to his grantee. In an executory contract for the sale of land, when the purchase money is unpaid, the
vendor retains the legal title and the vendee acquires an equity, which alone passes to the subsequent vendee. The case comes within the rule announced in the cases first cited, and it must therefore be held that John P. Erskine acquired no title to the land in controversy as against these plaintiffs by virtue of his purchase under the decree of foreclosure.
Delivered March 26, 1894.
If the plaintiffs had been grantees of all the land subject to the mortgage, and if they had been made parties to the foreclosure suit in a court-of competent jurisdiction, and a valid decree had been entered for the foreclosure and sale of the land, and if a sale had been made, which fpisóme reason was void, then they could not recover the land without refunding the purchase money.
But the judgment in this case is of no effect, at least as to them; and under the circumstances it would be inequitable to require them to refund as a condition of recovery. If they had been made parties, it would have been their right to show that the mortgage was barred, and in any event to require the mortgagee to sell the other land subject to the mortgage before proceeding against that which had been conveyed to them by the mortgagor. In such a case the rule announced in Northcraft v. Oliver, 74 Texas, 168, can not be applied.
The case is also distinguishable from Halsey v. Jones, decided by us at. the present term [ante, page 488]. That suit grew out of a probate proceeding to which the heirs are always parties; and the claims, which purported to be in part satisfied by the decree of the County Court, were recognized in the decree' as valid claims against the estate, and therefore-as a charge upon it.
We would not be understood as holding that if the proper parties had been made, the District Court did not have jurisdiction to foreclose the mortgage upon the particular land in controversy. Michael Erskine having sold this tract, his estate had no interest in it, and the County Court’,, as has been held, had no power to order a sale of it. But for the same reason the District Court had no power to order a sale of it as the property of his estate.
The judgments of the District Court and of the Court of Civil Appeals-are reversed and the cause remanded.
Reversed and remanded.