Wright v. Wooters

Citations

• 46 Tex. 380

Syllabus

<p>1. Foreclosure—Parties.—A decree of foreclosure does not conclude a purchaser whose rights in the property were known before the commencement of the foreclosure proceedings.</p> <p>2. Waiver of vendor’s lien—New security.—In a suit by one claiming as the vendor, and also under a foreclosure and sale, and against one not a party to the foreclosure proceedings, having purchased prior to such suit, the question, whether the vendor was precluded from enforcing his “superior title” as against the assignee of the purchaser, the purchase-money not being paid, is material, and should be submitted to the jury, if pleaded in defense.</p> <p>3. Vendor’s title, where purchase-money has not been paid. While the doctrine that a mortgage to secure the purchase-money, executed b3 the vendee at the time he receives his conveyance, has the effect to make the contract executory, is well settled bjr the decisions'of this court, it is believed that its extension, so as to give like rights to others than the vendors, may lead to confusion; and such application of the principle should only be made where the right is clear.</p> <p>4. Practice.—A purchaser at such foreclosure sale (and particularly, if the plaintiff) lias the right of action to foreclose against the subsequent purchaser; in which suit the subsequent purchaser would have the right to make any defense he has; to put in issue the execution of the mortgage; if other lands were included in the mortgage, he may have necessary parties made, and the question of amount, with which the tract of land is chargeable, investigated, and have other lands, which were included in the mortgage, subjected to the debt, so that the tract purchased shall be subjected only to its proper proportionate amount.</p> <p>». Waiver.—Taking a new note with security, for a note secured by mortgage, is not a waiver of the mortgage, unless expressly intended to have that effect.</p>