Faubion v. Rogers

Citations

• 66 Tex. 472
• 1 S.W. 166
• 1886 Tex. LEXIS 548

Syllabus

<p>1. Vendor’s lien—Foreclosure—Adverse title—Parties—Warrantor—In 1857 a tract of land containing one thousand and sixty three acres was sold and a vendor’s lien retained. In 1859 the vendees executed to plaintiff their bond for title to two hundred and sixty-three acres of the tract, conditioned to make him title on the payment by him of certain notes. In 1873 defendant, claiming to be the owner, sold to plaintiff two hundred and forty-five acres out of the two hundred and sixty-three acre tract and gave him a warranty deed to the same. In 1878 plaintiff, being in possession, was made a party to a suit brought by the original vendor to foreclose his lien, and in 1882 the lien was foreclosed and the entire tract sold. Plaintiff then sued defendant on his warranty. Held:</p> <p>(1) Plaintiff was a proper and necessary party to the suit to foreclose, in order to bind him by the judgment, and bar his equity of redemption, and the original vendor was entitled to have his lien foreclosed, no matter what defenses existed against the notes given by plaintiff to his vendor.</p> <p>(2) Plaintiff, having been brought in as a purchaser of the original vendee in possession, could not have set up an adverse title in himself, and had it litigated and determined in the foreclosure suit, nor could he have been compelled in that suit to litigate his adverse title. (Authorities cited.) The only proper parties to a suit to foreclose a mortgage are the mortgagor, the mortgagee, and those who have acquired an interest from them subsequently to the mortgage. (2 Jones on Mort., sec. 1440.) The same rule holds as to similar liens.</p> <p>(3) When the title to real property is not directly involved in a suit, a third party, in order to intervene, must show to the court that the result of the suit will affect his interests. Plaintiff’s adverse title could not have been affected by the foreclosure suit, and was not passed upon in it.</p> <p>(4) It was a good defense in this suit for defendan