Fraim v. Frederick , 32 Tex. 294 ( 1869 )

Lindsay, J.

The main points relied upon, in the assignments of error, for the reversal of this judgment, are :

1. The admission, upon the trial, of the deposition of a husband whose wife’s interest was involved in the subject matter of the controversy, to be read as evidence against her co-defendants.

2. An error in the charge of the court, in announcing the proposition .that a purchaser of land to whose notice a knowledge of the vendor’s lien is brought subsequent to the contract of purchase, but prior to the payment of all the purchase money, and who still pays the residue, notwithstanding such notice, is not an innocent purchaser without notice. ■

3. When a vendor’s lien for the purchase money is enforced against a subsequent purchaser ivith notice, the question of the propriety of adjudging the surplus of the proceeds of the sale of the land to the vendor of such subsequent purchaser.

Each of these points will be considered in its order :

1. In this case the beneficial owner of the estate involved was the wife. The husband was made a party jiro hao vice, because the law required him to be united in all actions, even wfyen the wife alone is beneficially interested in the result of the litigation. The fee ivas in her. It ivas her separate property. The prohibition of the common law is against a husband or wife testifying for or against each other. The statutes of Texas prohibits either from testifying in relation to communications made to each other, either during the marriage or after the marriage ceases, except where such communications may go to extenuate or justify the conduct of either, when charged with an offense. Besides, the statute provides that no rule of the common law which excludes a witness on account of such relationship, shall have any force or effect, unless in accordance with some express provision of a statute of the State. (See Arts. 3112 and 3113, Paschal’s Digest.) The rule of evidence in criminal and civil cases is the same, both by the common law and by the statutes of this State. In this case the husband was testifying neither for nor against the wife—neither for nor against himself. The interest of both husband and wife was evenly balanced in this controversy. If the lien was enforced, the debt of the wile and husband contracted in the purchase of the land was to be paid by its sale. If the lien was not enforced, they had a just right to retain the purchase money for which they sold the land, to enable them to discharge the obligation contracted in their purchase. And thus, upon the principle of fair and upright dealing, and upon the legal presumption of the honesty and integrity of the witness, not even a moral bias can be perceived, to cast suspicion upon the credibility of his statements: much less is there any direct legal interest in the results of the controversy to discpialify him to give his testimony in the cause. The law -would presume that he and his wife, in all fairness and honesty, had fully apprised their vendee of the equity of their vendor, or of the holders of their outstanding obligations, for the purchase money they had contracted to pay; and had explained all the circumstances to the purchaser at the time they made the alienation. In a contest between other parties, these facts might properly enough be elucidated by their testimony, without an imputation of slandering the title which they had attempted to convey, and did convey, subject, however, to their vendor’s lien. It is to be presumed the purchaser from them made inquiry, as every prudent man would, whether there was any incumbrance upon the land. And the law indulges the presumption that, as honest dealers, the truth of the facts was communicated to the pmehaser; and in making the purchase he did it own onere. It is the honest dealer the law endeavors to protect, and not him who seeks, by art and cunning, to obtain an undue advantage. The testimony was competent. Of its credibility the j ury were the judges.

2. The doctrine of the law, as to what constitutes a bona fide purchaser for a valuable consideration without notice, is well defined and well settled in American jurisprudence. He who purchases, and actually pays, not a part, but the whole, of the purchase money, or the valuable consideration, in good faith, without a knowledge of the vendor’s lien, is such purchaser as the law contemplates; and he will be protected in a court of equity. He who has simply made a contract of purchase, and has received a deed of conveyance from his vendor, but has not paid the valuable consideration, is wanting in an indispensable element in the constitution of such a purchaser. He comes not within the rule, or the legal definition, of an innocent purchaser without notice. If the knowledge of the lien is brought to his notice before payment, and he afterwards pays the whole, or a part of the consideration, it is an act which the law regards as mala fide, and he forfeits the protection of a court of conscience, and can not shield himself under its aegis. True it is, if he has paid a part of the purchase money before notice, equity will afford him relief jpro tamto. But other principles of equity are applied in affording such relief.

When, however, in utter disregard of the principles of good conscience, after he has knowledge of the lien, he pays either the whole, or a part, of the consideration, without seeing to its application for the extinguishment of the lien, with what grace can he attempt to shelter himself under the equitable principle, which courts of equity employ for the protection of a Iona fide purchaser for a valuable consideration without notice ? If he pays but a part, after such notice, it is an act of bad faith, which contaminates the whole transaction from the beginning, and no principle of equity can be invoked to exonerate him from the consequences of his own faithless act. The principles -of equity were devised to enforce honest and fair dealing between man and man, and are not to be perverted to the .giving of a seeming sanction to wrong-doing. The error assigned, therefore, against the legal proposition announced in the charge of the court to the jury, upon the facts developed on the trial of the cause, finds not its support in the principles of equity. The proposition in the charge is in strict consonance with the principles of right and justice.

3. An objection is taken to the judgment, because the surplus proceeds of the sale of the land, to satisfy the vendor’s lien, is ordered therein to be paid over to the makers of the notes, which were the evidence of the unpaid purchase money, and under the judgment for which the lien upon the land was enforced. Being the makers of the notes, after the lien was satisfied, they certainly were the rightful claimants of the surplus products of the sale. But their vendee having paid to them, in a cash note, a part of the consideration of his purchase, it is supposed, without pleadings to warrant it, that the court ought to have directed the payment of the residue of the money, arising from the sale after extinguishment of the Hen ■claim, to be made to the subsequent purchaser, who was insisting throughout the trial that lie was a purchaser in good faith without notice. How, the proof shows abundantly, that it was a mala fide contract, and that the whole transaction was a studied contrivance to evade the law of notice in regard to vendor’s liens. This is made most manifest by all the testimony in the case; and the simple statement of the facts ■deposed to by the two attorneys, who testified on the trial, and whose testimony did not involve a question of professional confidence, brought out this studied contrivance in bold relief. In such an attitude of the case, in its pleadings and in the proof, no principle of justice or of equity, authorized the court to render any other judgment than the one pronounced.

The judgment is affirmed.

Affirmed.