Neel v. Prickett , 12 Tex. 137 ( 1854 )

Hemphill, Ch. J.

This is a suit for the recovery of two notes, given for the purchase money of a tract of land. The defence relied on was, that, by the bond for title, the plaintiff was, on the punctual payment of the notes, to make a good and lawful title to the land, but that this he could not perform, for the reason that the plaintiff himself had not paid for the- land ; that he had purchased the land from one Andrew C. Walters, and that Walters still retained his vendor’s lien, of which the defendant had notice ; and the defendant -claims the right to retain the money in his own hands, until the said vendor’s lien was satisfied. There was judgment for the plaintiff, with a stay of execution until the plaintiff should deposit with the Clerk of the Court, a title deed in conformity with the bond.

The only exception, taken at the trial, and the only ground „ of error relied on here, is as to the exclusion of the evidence of a witness, offered to prove the existence of an outstanding vendor’s lien on the said land of which the defendant had ■notice.

It is a familiar doctrine, that a vendor has a lien on the land, for the amount of the purchase money, not only against the vendee himself and his heirs and other privies in estate, • but also against all subsequent purchasers having notice that the purchase money remains unpaid. (1 Tex. R. 326; Story Eq. Jur. Sec. 788, 789, 1217.) And it is a principle generally acknowledged, that in executory contracts for the sale of land, the purchaser has a right to resist the payment of the purchase money, or to have it refunded if paid, on the ground of defect of title in the vendor. (4 Tex. R. 116; 7 Tex. R. 244; 10 Id. 372.)

There may be circumstances which would deprive a vendee of the benefit of this rule; such, for instance, as would show a knowledge, at the time of the contract, of the defects in the title, and that he intended to accept such title as could be made, relying, in case of failure, upon the covenants of warranty, for redress. (7 Tex. R. 244; 6 Paige, 407; 2 Rich. Eq. 322.)

Ho facts of this description are shown to have any existence in this-case. It does not even appear that he is in possession of the land. And, although at the time of the sale, he may have been apprised of the existence of a prior vendor’s lien, yet notice of this fact does not defeat his right to set it up in defence. He might very reasonably have supposed that such lien would be discharged before the maturity of his notes; and that the land would be freed of the incumbrance, before the purchase money from him would be due.

There are no facts in the case, which would modify the operation of the general rule in favor of defendant; and we are therefore of opinion that there was error in the exclusion of the evidence offered to prove the existence of the outstanding lien, and that the judgment should be reversed and cause remanded ; and it is accordingly so ordered.

Reversed and remanded.