Hill v. Preston , 296 S.W. 925 ( 1927 )

Considering all the allegations, and giving full intendment and legal effect thereto, it is believed the court correctly sustained the demurrer to the petition. When W. L. Hill conveyed the land to La Roe and Parker and surrendered possession to them, he parted with the right of redemption. Harris v. Masterson, 91 Tex. 171, 41 S.W. 482. He thereafter occupied the position of surety for the payment of the notes to Richard Lloyd. Hill v. Hoeldtke, 104 Tex. 594, 142 S.W. 871, 40 L.R.A. (N. S.) 672. Scott Woodward, the last purchaser, had the equity of redemption coupled with the right of possession until legally disposed of in some way. Lindsey v. Hart (Tex.Com.App.) 276 S.W. 199. Richard Lloyd, as the first vendor, had the right to rescind the trade and repossess the land, the superior title remaining in him, or else to sue W. L. Hill, his original vendee, and La Roe and Parker, the vendees of W. L. Hill, on their assumption of the notes, and to foreclose his lien on the land, making Scott Woodward, the ultimate vendee, but who did not assume the notes, a party to the suit. In this attitude W. L. Hill did not have any legal right of possession or repossession of the land at the time Richard Lloyd through his agent Preston "advised the plaintiff, W. L. Hill," that "Scott Woodward, who then was claiming said land under the conveyance from La Roe and Parker to him, was willing to give up said land and surrender the possession thereof to plaintiff or to the said Richard Lloyd." The offer of Scott Woodward was purely that of rescission of the trade, "to give up said land and surrender the possession thereof" by reconveyance in full extinguishment of the unpaid notes. W. L. Hill did not, as far as alleged, accept the offer of reconveyance, or advance or offer to pay the defaulting interest. On the contrary, as alleged, W. L. Hill "orally agreed" that Richard Lloyd, legally entitled to repossess the land, could "take possession of the land and farm and rent the same and collect the rents and apply the same to the indebtedness evidenced by the notes of said W. L. Hill payable to said Richard Lloyd." The agreement was without any consideration to support it, and Richard Lloyd's executor would not be estopped from claiming the revenues of the land. W. L. Hill was bound to pay, as a personal obligation, the Interest then due and demanded of him, and he parted with no right when Richard Lloyd took possession of the land.

And the petition does not allege that Richard Lloyd agreed, after paying the rent on the notes, to surrender the possession of the land to W. L. Hill or back to Scott Woodward. No arrangement was described or alleged to be agreed to, by intendment or in legal effect, constituting Richard Lloyd like as a mortgagee in possession. The possession of Richard Lloyd was his own, as vendor, and not the possession of Hill or Woodward, and W. L. Hill had no legal or contractual right of possession, even though there had been default in payment of the interest due; and W. L. Hill's agreement that Richard Lloyd could have possession conferred no right in Richard Lloyd. The subsequent taking of the deed from Scott Woodward by the executor of Richard Lloyd invaded no right nor created any equity in W. L. Hill. It was not alleged that such conveyance was by agreement for the use and benefit of W. L. Hill, or that W. L. Hill advanced any consideration therefor. The conveyance operated, in the absence, as here, of any consideration moving from W. L. Hill, to be a rescission of the sale, passing the land back to Richard Lloyd and closing all equity of redemption of Scott Woodward and extinguishing the indebtedness of W. L. to Richard Lloyd. W. L. Hill could not have objected to nor revoked the conveyance. A resulting trust could not be predicated in the allegations. And the filing of the agreed suit did not operate to change the status of the parties, by intendment or in legal effect. The suit was for the purpose merely of clearing the title. There was no renunciation of title by the executor of Richard Lloyd.

The judgment is affirmed.