Willis v. Martin

4 S.W.2d 572, 1928 Tex. App. LEXIS 254

• Court: Court of Appeals of Texas
• Decided: March 15, 1928
• Docket: No. 3522.
• Status: Published

Opinion

WILLSON C. J.

(after stating the facts as above). [1] We think the judgment is erroneous so far as it is in Huston’s favor for a foreclosure of the vendor’s lien the Deckards attempted to retain on the land when they sold it to George Willis; for the land belonged to the state at that time, and the Deckards could not create a lien against it. Palmer v. Chandler, 47 Tex. 332.

In the case cited it appeared Palmer settled upon and improved public land, and before he had occupied same for the length of time required by the statute sold it to Chandler. It was held that Palmer was not entitled to assert a vendor’s lien against the land as security for a promissory note representing a part of the purchase price Chandler agreed to pay. In so holding the Supreme Court, in the opinion by Judge Moore, quoted approvingly by Judge Stay ton in Houston v. Dickson, 66 Tex. 79, 1 S. W. 375, said:

“If the vendor has no valid right to or interest in the land which will pass to or vest in the vendee, he cannot claim a vendor’s lien to secure notes given in payment for it,”

The ruling was followed in Williams v. Finley, 99 Tex. 473, 90 S. W. 1087, where it appeared Finley sold a 2-aere tract he owned' and a 300-acre tract he did not own, but which belonged to the state, to Armstrong, who sold, same to Williams, who afterwards purchased the 300-aere tract of the state, and where it appeared, further, that the purchase price Armstrong was to pay Finley for the 2 acres of land was represented by promissory notes made by Armstrong, which Williams agreed to pay. It was held that Finley was not entitled to have a vendor’s lien retained by him on the two tracts to secure the payment of the notes foreclosed on the 300-acre tract.

The trial court found .that when the state patented the land to George Willis June 10, 1920, he and Florence Willis, his wife, had possession thereof and were occupying and using same as their homestead, and ever thereafter continued to so occupy and use it, and found, further, that when he purchased the three notes for $300 each of Barney Deckard, Huston knew the land belonged to the state and not to Deckard at the time the latter attempted to create a vendor’s lien thereon to secure the payment of the notes. The conclusion of the trial court that Huston nevertheless was entitled to have the lien he claimed foreclosed was on the theory, it seems, that said George Willis and his wife were in the attitude of claiming title to the land under the conveyance to them from the Deckards and therefore were estopped from asserting the Deckards did not have the title to the land. “I conclude,” said the court, “that George Willis was estopped by the deed under which he held to set up want of title in his vendor.” The general rule is that a vendee is not estopped to deny his vendor’s title. 21 O. J. 1069, and eases there cited; 10 R. C. L. 682, and cases there cited; Collins v. Box, 40 Tex. 190; Robertson v. Pickrell, 109 U. S. 608, 3 S. Ct. 407, 27 L. Ed. 1049; Bybee v. Railway Co., 139 U. S. 663, 11 S. Ct. 641, 35 L. Ed. 305. There is nothing in the facts of this case which makes the general rule inapplicable, and we think the conclusion of the trial court to the contrary was erroneous.

One of the three notes' transferred to Huston matured January 1,1921, and another January 1, 1922. Huston’s cross-action in which he sought a recovery on the notes was not commenced until December 17, 1926, which was more than four years after the maturity of .the two notes specified. Willis .and his wife in their pleadings having set up the statute of limitations of four years (article 5688, Vernon’s Statutes) in bar of the right claimed by Huston .to a recovery on the notes, the trial court erred when he held that Huston nevertheless was entitled to recover on the two notes specified. Evidently that court’s action was based on his finding that the notes were secured by a vendor’s lien on the land, and that Huston’s rights therefore were determinable by article 5694,' Vernon’s Statutes, as construed by the Commission of Appeals in Bank v. Graham, 275 S. W. 997. But, as we have held, the notes were not so secured, and therefore said article 5688, and not article 5694, was the statute applicable to the case.

The other one of the three notes transferred to Huston matured January 1,1923, less than four years before Huston’s suit thereon was commenced. But it appears from the note ■copied in the statement of facts sent to this court, and the credits indorsed thereon, that i,t was paid in full October 18, 1920, which, as we lave seen, was long before Huston by his cross-action sought a recovery thereon.

The judgment will be so reformed as to deny Huston a recovery of anything against Willis and his wife, and as so reformed will be affirmed. The costs of the appeal will be adjudged agains.t appellee Huston.