Burgess v. Millican

Citations

• 50 Tex. 397

Syllabus

<p>1. Vendor and vendee - Eights of vendor in possession after purchase-money note barred.—Where a mortgage for the payment of the purchase-money for land is executed simultaneously with the deed by which it is conveyed, the vendor has, until the purchase-money is paid or the mortgage foreclosed, the superior right. If the vendor go into possession after the vendee has made default, he cannot he turned out by an action of trespass to try title, although the purchase - money, as a debt, be barred by the statutes of limitation.</p> <p>2. Same.—In such case the fee will remain in the vendor, and the sale be conditional upon the performance of the contract by the vendee.</p> <p>3. Same.—The same rule applies to an administrator’s sale.</p> <p>4. Statute construed—Land.— Paschal’s Digest, art. 1327, providing that the deed of the administrator, made upon the confirmation of such sale, shall vest in the purchaser the right or title of the testator or intestate, does not define the estate thereby conveyed. Such enactment becomes necessary from the provision of the probate law vesting the estate in the heirs.</p> <p>5. Case discussed and approved.—Dunlap v. Wright, II Tex., 597, discussed and approved.</p> <p>6. Vendor and vendee.—See case where deed from heirs conveyed a title as against a purchaser at a sale hy the administrator, and nonpayment by such purchaser.</p> <p>7. Same.—A vendor holding a mortgage on the land sold to secure the purchase-money, on default by the vendee, and no reason for such default, is entitled to possession of tiie land, and to maintain an action to quiet his possession and to remove the cloud from his title by such sale.</p>