Luter v. Rose

20 Tex. 639

• Court: Texas Supreme Court
• Decided: July 1, 1858
• Status: Published

Opinion

Wheeler, J.

The evidence puts it beyond question, that the deed of trust aud the sale under it, were made with the knowledge and consent, if not by the procurement of Newcomb. He was present at the sale, and did not object to it or give notice of his judgment lien upon the land. He evidently favored the sale, expecting it would be the means of obtaining satisfaction of his judgment. It is a familiar rule of law, that if one having title stands by while another purchases from a third person claiming title, and does not forbid the purchase or disclose his own title, he will be bound. By consenting to the sale, Newcomb waived the right to enforce the lien of his judgment against the purchaser at the sale and his vendee. The title of the latter is therefore superior to that acquired by the purchaser at the sale under the execution.

There was no error in excluding evidence of the declarations of the purchaser at the sale under the deed of trust. Such evidence could not be received to impeach the title of his vendee, who is not shown to have had notice of them. The judgment is affirmed.

Judgment affirmed.