Burford v. Rosenfield

Citations

• 37 Tex. 42

Syllabus

<p>1. On a note given for land, secured by mortgage on the same land, suit was brought for a money judgment and for foreclosure, but the jury returned a verdict for the amount of the debt, without any finding with respect to the mortgage or lien; notwithstanding which, a decree of foreclosure was rendered by the court, as well as a general judgment. No appeal was taken, and the defendant in the judgment acquiesced in it for years after its rendition. Held, that however erroneous the decree may have been, it was not void, nor was it subject to be impeached in a collateral suit; and all parties in privity with the defendant in such decree, and claiming under him the land foreclosed, are estopped by his acquiescence, from questioning the validity of the decree.</p> <p>2. Lis pendens is constructive notice ; and a sale of land, pendente lite, is void as against the plaintiff in the suit.</p> <p>3. In every sale of land the vendor’s lien for unpaid purchase-money exists, unless otherwise agreed by the parties ; and the brows is on' the vendee to show that the lien was waived by the vendor.</p> <p>4. A vendee of land who has not paid the purchase-money acquires no homestead right in it, as against a vendor who retains his lien upon it.</p> <p>5. Counsel for appellant having made admissions of certain material facts not stated in the transcript, this court treats the admissions with much consideration. (On rehearing.)</p>