De Bruhl v. Maas

Citations

• 54 Tex. 464
• 1881 Tex. LEXIS 48

Syllabus

<p>1. Vendor’s lien.— The lien which a vendor has on land for the unpaid purchase money is neither diminished or affected by taking from the vendees, who have executed notes for the purchase money, a deed of trust.</p> <p>2. Vendor’s lien —Promissory note.—The blank indorsement of a purchase money note, or its transfer by delivery when made payable to bearer, passes to the owner thereof the vendor’s lien which secures it.</p> <p>3. Conditional sale — Mortgage.— If it be doubtful whether the parties to an instrument intended a mortgage or a conditional sale, courts of equity will consider the transaction as a mortgage. If the relation of debtor and creditor remains, and a debt still subsists, it is a mortgage; but if the debt be extinguished by the agreement of the parties, or the money advanced is not by way of loan, and the grantor has the privilege of refunding, if he pleases, by a given time, and thereby entitles himself to a reconveyance, it is a conditional sale.</p> <p>4. Deed of trust — Vendor’s lien.— A vendor, to secure the unpaid purchase money on land, received a promissory note, which recited that it was given for purchase money, and as further security a deed of trust was executed by the purchaser. In default of payment the purchaser reconveyed, and leased from the vendor the premises, contemporaneous with which a written memoranda was executed, to the effect that if the rent was punctually paid each month, the original vendor would give the lessee “ a chance ” to repurchase the property, at the amount due on the same under the original contract. The original purchase money note was retained by the vendor, and suit brought thereon, praying that the deed of trust, reconveyance, lease and written memoranda be decreed to constitute a mortgage, and for judgment on the amount due on the note with decree of foreclosure, etc. Held—</p> <p>1. Whether the original vendor still retained the lien which he preserved by virtue of the deed of trust, or whether the ne