Cocke v. Church , 23 S.W.2d 743 ( 1929 )

The decision, as arrived at in the original opinion, is made to rest in part upon the assumption that appellee Church is the holder of the vendor's lien note, and was claiming title thereunder. It is held in the opinion that the note was barred, and that bar seems to be used to cut off Church, assumed in the opinion to be the holder of the barred note.

The record shows, however, that appellant, Cocke, and not appellee Church, is the holder of the note, and, if the bar against the note is held to operate against either party, it must be against Cocke, and not against Church, since it is the former, and not the latter, who is relying upon nonpayment of the note to support his title. It is clear, then, that reversal cannot rest upon the assumption that Church held and relied upon the barred note, since that assumption is erroneous; nor can reversal rest upon conclusions based upon that erroneous premise.

The record shows that Cocke had taken possession under the superior title reserved by his predecessor to secure the payment of the balance owing upon the purchase price, as evidenced by the vendor's lien note, which, although long since barred, has never been paid. And, while both the note and lien held by Cocke were barred, and he was thereby cut off from bringing suit to recover upon the note or to enforce his lien, yet he could not be ousted of his title and possession at the suit of the holder of the legal title, so long as the purchase price remained unpaid. Bunn v. City of Laredo (Tex Com. App.) 245 S.W. 426, 427. Upon this theory I concur in the result.