Morton v. Ft. Worth Express Co.

2 Posey 242

• Court: Texas Commission of Appeals
• Decided: July 1, 1880
• Docket: No. 901
• Status: Published

Opinion

Opinion.—The amended petition by which Morton first asserted a lien upon the property and sought its foreclosure was filed subsequent to the registration of the deed from Sturgeon to appellee, and it was certainly necessary for him. to have made appellee a party to the suit to have affected its rights by the foreclosure decree. As to third parties, the assertion of the lien by the amended petition, and a prayer for a decree of foreclosure, had the same and. no other effect than if the suit for that purpose had been instituted, Peters v. Clements, 46 Tex., 125. Hence, as appellee was no party to that proceeding, the decree of foreclosure against Sturgeon in no way affected its rights to the property.

Considering the recitals in the deed from Horton to Sturgeon, with notice of which appellee is chargeable in law, in connection with the other evidence adduced to that issue, tending to establish notice of the existence of the lien at the time appellee purchased from Sturgeon, the court should have submitted that issue to the jury. And for this error the judgment is

¡Reversed and remanded.