Nesmith v. McLemore

23 Tex. 442

• Court: Texas Supreme Court
• Decided: July 1, 1859
• Status: Published

Opinion

Roberts, J.

We are of opinion, that there is no error in this case. The assignees of a negotiable note, given originally for land, are not compelled to enforce the vendor’s lien, in order to secure the liability of the assignor, who is the payee of the note. It does not constitute one of the conditions upon which the assignor’s liability attaches, according to the mercantile law. If such a rule were ingrafted on it, facts are not stated in the petition, from which it could be assumed by the court, in this case, that the vendor’s lien had necessarily been secured and preserved. If the lien had existed, and been preserved, the assignor may possibly have shown that fact, for his own benefit, by pleading and proof, upon the trial. And this intimation is made, simply to show, that we do not decide that the assignor cannot, at the proper time, litigate this matter. Judgment affirmed, with ten per cent, damages.

Affirmed with damages.