Flanagan v. Cushman

Citations

• 48 Tex. 241

Syllabus

<p>1. Vendor’s hen.—It has been held by this court, from its first organization, that the vendor of land has an equitable lien upon it for the unpaid purchase-money, unless such lien has been expressly or impliedly waived or abandoned.</p> <p>2. Same—Debt carries the lien.—It is regarded as settled, in this State, that the transfer or assignment of the debt carries the lien or security for its payment, unless it is shown that such was not the intention of the parties.</p> <p>3. Same—Effect of taking additional security.—Where other-security than the land is contracted for, equity does not infer that the vendor is entitled to a different and additional security from that stipulated.</p> <p>4. Vendor’s lien not lost by change in evidence of the. debt.—The lien is a security for the purchase-money as long as it remains unpaid. It is not merely a security for the note given in the first instance, but for the debt of which the note, when given, is merely the evidence.</p> <p>5. Same—Case in suit.—A sold a tract of land to B, and executed to him a title bond, taking his promissory note for the purchase-money. Subsequently, and after part of the note had been paid, and while B and family were residing on the land, B contracted with O to-furnish the balance due on the purchase-money note, and on such payment A executed a deed to B, who at the same time executed his note to O for the money by him advanced and paid to A, recognizing in the note the vendor’s lien, and at the same time executing, a trust deed to secure the payment of the last note to O : Held, That as it appeared that it was not the intention to abandon the lien,, the vendor’s lien remained as against homestead rights of B and his family in the land.</p> <p>6. Right of vendor until purchase-money is paid.—Until the-purchase-money is paid, the better title remains in the vendor, and in the above facts the rights of the vendee are no better than if he had renewed the note to A, and made simultaneously a mortgage,