McRimmon v. Martin , 14 Tex. 318 ( 1855 )

Lipscomb, J.

This suit was brought by the appellant, to enjoin the Chief Justice of Upshur County, from enforcing a lien in favor of the County of Upshur, on three several lots in the town of Gilmer, the site selected for County Seat, purchased by Galloway at the sale of lots on the said site, made by the Commissioners for the County, for which purchase Galloway gave his note at twelve months, secured by a mortgage on the lots purchased. Petitioner alleges that he is now the owner, and in possession of the said lots, by purchase for a valuable consideration; that the said title comes to him through several intermediate persons who claimed under Galloway, by deed from him; that he had no notice of the lien on the said lots, in the county ; and that the Chief Justice of the county is about enforcing said lien.

There is no doubt but an innocent purchaser, without notice, either express or constructive, is entitled to protection ; but in this case, the title deeds showed the appellant the source of the title, and the law requiring a lien by mortgage was notice to him. The Act of 26th January, A. D. 1848, supplemental to an Act to organize the county of Upshur, directs the sale of' the lots to be on a credit of twelve months, with a note and good security, payable to the Chief Justice, with a mortgage on the property sold. This security by mortgage is expressly required by law, and all persons purchasing town lots are bound to know that it was required, and are not permitted to plead ignorance. It would not be competent for the Court to require the Chief Justice to take as a substitute for the security any of an inferior degree, such as personal security. And to incur, at the expense of the county, the risk of such security, nor the cost of prosecuting such to judgment, and even then, might not be able to procure satisfaction. It would be different, if there was a fund in hand, by which the mortgage could and ought to be satisfied by the mortgagee. We believe there is no equity in the appellant’s petition, and the decree is affirmed.

Judgment affirmed.