McKelvain v. Allen

Citations

• 58 Tex. 383
• 1883 Tex. LEXIS 33

Syllabus

<p>1. Deed—Vendor’s lien.— A deed absolute • on its face containing covenants of warranty as to title, which recites the execution of notes for the purchase money, but declares no lien, passes the title to the purchaser under execution against the vendee, but subject to the vendor’s lien, of which the recitals in the deed give notice.</p> <p>2. Same.— If, however, contemporaneous with execution of such a deed, the vendee executes notes for the purchase money, which on tbeir face recite the purchase, and in terms declare the existence of a lien until the notes are paid, this will be as effectual to prevent the title from passing by the deed as though the lien were reserved by its terms. Under such circumstances the notes and deed would be construed as one instrument evidencing an executory contract to sell the land.</p> <p>3. Same.—If, when such deed and notes are executed, the notes contain a clause whereby their maker agrees to pay rent for the land if he should not pay the notes at their maturity, the relation of the parties after default would be that of landlord and tenant, and a judgment creditor of the vendee with notice, could acquire by purchase of the land under execution, no higher title than he possessed.</p> <p>4. Same — Judgment — Evidence.— In a suit for the land by such purchaser ynder execution, issued under a judgment against the vendee, obtained in a proceeding to which the vendor was not a party, the purchaser made no tender of the unpaid purchase money due on the notes. Held, that there was no error in excluding his judgment when offered in evidence.</p> <p>5. Cases approved.— Dunlap’s Adm’r v. Wright, 11 Tex., 597; Baker v. Ramey, 27 Tex., 59; Peters v. Clements, 46 Tex., 114; Baker v. Clepper, 26 Tex., 629, and Baker v. Compton, 52 Tex., 261, approved.</p>