Watt v. White, Smith & Baldwin

Citations

• 33 Tex. 421

Syllabus

<p>1. When notes given for land are transferred, the vendor’s lien, if subsisting, • also passes to the assignee.</p> <p>2. C. purchased land in this State from W., and for the purchase money executed his two notes for equal amounts, and due in one and two years respectively. W. transferred the first note to the appellees, and the second to the appellant. Appellees brought suit in Louisiana (where they lived) against 0., by attachment of his property, which was replevied by bond and security for twice the value of the property; by which and by judgment in the Louisiana court in their favor, the appellees obtained a security more than sufficient to satisfy their demand. But, pending their attachment suit in Louisiana, both they and the appellants instituted suits m this State for the enforcement of their vendor’s lien upon the land, and the court below rendered judgments in their favor at the same term, and decreed that the land be sold and the proceeds be equally divided between the appellant and the appellees. Held, that there is error in the judgment; that the vendor’s lien is itself the creature of equity, and he who seeks the aid of equity, must himself do equity; that the appellees must first exhaust the security obtained by them in their attachment suit, or else must show that it is unavailable or insufficient, before they can be permitted to resort to the land. And held further, that they should be postponed, not only to the appellant, but also to any sub- ’ sequent mortgagees and judgment creditors, if any Buch there be.</p>