Looney v. Simpson , 87 Tex. 109 ( 1894 )

The holder of the notes executed by C.H. Milliken for the purchase money of the land, not having been made a party to the suit brought by Cynthia Daniels against the county surveyor and Sam H. and C.H. Milliken, was not bound by the judgment therein rendered, and therefore had the right to enforce the vendor's lien against the land.

The general rule doubtless is, that a claimant of land under a different title from that under which the mortgagor field is not a proper party to a foreclosure suit; but we are of opinion, under the facts of this case, that plaintiff in error was properly made a defendant in this suit, the purpose of which is to foreclose vendor's lien on land to which Sam H. Milliken had valid title at the time he sold and received the notes sued upon to secure the purchase money. His title to the land was then good; but after that the vendor of plaintiff in error brought an action against him, and obtained a judgment which could not lawfully have been rendered had the facts now shown been established on the trial of that cause.

That judgment operates as a cloud upon the title, which the holder of the purchase money notes has the right to have declared inoperative against his right to have the land, with title as it stood when the notes were executed, sold to satisfy his claim; for otherwise the land would not sell for a fair price, unless a purchaser could be found who was willing to risk his own judgment and pay a fair price for it in the face of the claim now asserted by plaintiff in error, that all title Sam H. Milliken ever had was swept away by the judgment rendered in favor of Cynthia Daniels.

The same reasons exist for clearing the title before sale in this case as exist in a cause in which a creditor seeks to have a fraudulent conveyance set aside in order that property so conveyed may be sold at a fair price; and to such a suit the adverse claimant is both a proper and necessary party.

That suits for purpose last mentioned may be maintained is well settled. Lynn v. Le Gierse, 48 Tex. 140; Shaw v. Dwight, 84 Am. Dec., 275; Freem. on Ex., 424.

The pleadings of the respective parties set forth the facts on which plaintiff in error relies to defeat the relief sought by the plaintiff; and in view of the entire record there can be no doubt of the correctness of the judgments rendered by the District Court and Court of Civil Appeals, and their judgments will be affirmed.

Affirmed.

Delivered June 4, 1894.