Byler v. Johnson , 45 Tex. 509 ( 1876 )

Gould, Associate Justice.

The plaintiff, in Ms amended petition, alleged the execution by his vendees in December, 1862, several years before the institution of the suit to foreclose, of a conveyance to the defendants in this suit, under which they entered into possession. Under these circumstances the defendants cannot be affected by proceedings in a suit to which they were not parties, and the court did not err in excluding evidence of such proceedings from the jury. In more than one case at the late Galveston Term the proposition is affirmed that, as against a purchaser of whose claim there is notice, a sale had under decree of foreclosure against the original vendee alone is ineffectual to pass the title. (4 Kent, 186; 1 Dan. Ch. Pr., 277; Watson v. Spence, 20 Wendell, 260; Harris v. Beach, 3 Johns. Ch.; Peto v. Hammond, 29 Beavan, 91; Mills v. Traylor, 30 Tex., 11; Buchanan v. Monroe, 22 Tex., 542; Rorer on Jud. Sales, secs. 176, 199, 382; 2 Hilliard on Mort., p. 87; Freeman on Judg., secs. 162, 201.)

Counsel contend that the evidence shows that the original vendee continued in possession until after the commencement of the suit to foreclose, and that although the deed to the Johnstons was on record, this actual possession would relieve the plaintiff of the notice which would otherwise arise from registration. The evidence, however, is, that after their conveyance the original vendees held as tenants, paying rent. In Webb v. Maxan, 11 Tex., 678, if the purchaser’s deed was on record when the suit for foreclosure was brought, it does not so appear in the case as reported, nor does it appear that the attention of the court was called to the fact. Under the evidence, as well as the pleadings, the plaintiff was, we think, chargeable with notice of the sale to the Johnstons.

In a suit where the question of title alone is litigated, their title is superior to the plaintiffs, and must prevail. The pleadings presented no other issues, save that of title, and no question is before us as to what may be the equities of either plaintiff or defendants in any other proceeding. (Mann v. Falcon, 25 Tex., 272.)

It has been contended that, by virtue of Ms vendor’s lien, Byler retained such ownersMp as would enable him, notwithstanding his conveyance, to maintain a suit for possession. In the cases cited by counsel, (Dunlap v. Wright 11 Tex., 603, and Howard v. Davis, 6 Tex., 174,) the vendee, at the time he received his deed, executed a mortgage to secure the purchase-money ; and it was held that the two instruments taken together constituted an executory contract. Those cases are no authority for the position contended for.

Affirmed.