Whitehead v. Fisher, Garrity & Huey

Citations

• 64 Tex. 638

Syllabus

<p>1. Lien — Priority—Foreclosure.— A vendor took in part payment of the purchase money for a tract of land, two notes, due one and two years from date, and the deed retained an express lien for their payment. The note first due was transferred with the parol agreement that it should be paid fully before the second note, which was retained by the vendor. The assignee foreclosed the lien and bought in the land; the vendor afterwards, foreclosed the lien held by virtue of the second note and also bought in the land. Held:</p> <p>(1) That it has been decided in some states that the note first due would have priority of lien, but not so in Texas. Paris Ex. Bank v. Beard, 49 Tex., 363.</p> <p>(3) That the legal title remained in the vendor, as between himself and the vendee.</p> <p>(3) That the assignee of the note held a lien upon the land, and not a lien merely on the interest held by the vendee. The vendor impliedly contracted that whatever title he or his vendee had to the land, in default of payment of the note transferred, should be subjected to the payment of the transferred debt.</p> <p>(4) That the position was in effect that of a person holding a mortgage to secure two notes given to him for land, who transfers one of them. It is well settled that without any agreement to that effect the transferee is entitled to be paid out of the proceeds of the mortgaged property, in preference to the mortgagee holding the other note. (See cas?s cited in the opinion.)</p> <p>(5) That the assignment, even without the parol agreement as to priority of lien, would preclude the idea that the assignee was to be secured only in the event the land sold for enough to pay both notes.</p> <p>(6) That a foreclosure and sale of the land by the assignee, in a suit in which the vendor was or was not a party, would pass the superior title to the land.</p> <p>(7) That it was a question whether the vendor was entitled to any relief without making a tender of the sum due on the transferred no