Fortson v. Caldwell

17 Tex. 627

• Court: Texas Supreme Court
• Decided: July 1, 1856
• Status: Published

Opinion

Wheeler, J.

The answer of the defendant was manifestly insufficient as a plea of failure or partial failure of consideration. It did not show, by averment, any defect of title in the-plaintiff, in respect of the whole, or any part of the land contracted to be conveyed ; nor any outstanding title. The averment that the defendant had been sued for a part of the land, by a third person^ without averring that such third person had' a superior, or indeed any title to the land, was no answer to the action. The suit may have been collusively brought, for the purpose of delaying the plaintiff in the collection of the purchase money. Nor was the offer to pay the purchase money, in the due course of administration, any answer to the action ; which was brought, not only for the recovery of the money, but the establishment and enforcement of the vendor’s lien.

There is no error in the judgment, so far as it ascertains and, fixes the amount of indebtedness and establishes the vendor’s lien. But it is believed to be more consonant to the spirit and' intention of the law regulating the settlement of the estates of deceased persons, that the enforcement of the lien should be effected by proceedings in the Probate Court under the provisions of Article 1168 of the Digest, than by a writ issued directly from the District Court. It was proper for the District Court to give judgment establishing the lien. But instead of awarding execution, the judgment should have been ordered to be certified to the Probate Court to be settled in the due course of administration ; and the order of sale would be there obtained under the provision of the law, to which we have reference. Such was the judgment of this Court in the ease of Robertson v. Paul, (16 Tex. R.), and it is believed tobe the better practice. The judgment, therefore will be in so far reformed as to conform to this opinion.

Judgment reformed.