White, Smith & Baldwin v. Downs

Citations

• 40 Tex. 225

Syllabus

<p>On Rehearing.</p> <p>1. The opinion and reasoning for a judgment in the Supreme Court form no part of such judgment, nor is a judgment of reversal remanding for a new trial final between the parties, nor conclusive of their rights.</p> <p>2. The vendor’s lien arises by implication as a natural equity creating a constructive trust in the vendee, that he should not keep the estate without paying for it; it arises and exists at the time of the sale, and results from the sale on credit without security.</p> <p>3. The transfer by delivery of a note secured by the vendor’s lien, payable to bearer, passes the lien.</p> <p>4. The transfer of a note payable to bearer, and secured by the vendor’s lien as collateral to secure a less sum than the note so transferred, carries with such transfer the lien, and also the right to priority of payment out of the sum realized on such collateral and the security therefor.</p> <p>5. The vendor’s lien is not lost by an unsuccessful suit by attachment upon other property, nor as between parties by any mere failure to sue.</p> <p>6. A failure to obtain satisfaction at law has never been held good cause for refusal of equitable relief.</p> <p>7. The priority of payment out of a note and its security, which passes by the transfer of a note payable to bearer, and secured as collateral to secure a less sum, can be enforced as to the security against a lien of equal standing retained by the party so transferring such collateral.</p> <p>8. See discussion of facts in legal proceedings with reference to diligence in asserting claims against an estate and against a security by one holding such claim as collateral.</p>