McAlpin v. Burnett , 19 Tex. 497 ( 1857 )

Roberts, J.

The note in this case was given by Burnett to Dial, payable to bearer; passed through several hands, until it reached plaintiffs, the appellants, who brought suit and recovered a judgment against Burnett. The note was given for a lot of land ; and after the judgment was rendered, andjah execution was returned “ no property found,” appellants brought suit setting forth these facts, and also that the other defendants had purchased the lot, with notice of the existence of the lien, and that ¡it had not been discharged ; and made them also parties to the suit and prayed for the enforcement of the vendor’s lien in favor of plaintiffs. Defendants excepted to plaintiffs’ petition, and the Court sustained the exceptions and dismissed the suit, from which plaintiffs appealed to this Court.

The assignment of the note did not destroy the vendor’s lien. (Moore v. Raymond, 15 Texas R. 554.) The bona fide holder of a note payable to “ bearer,” and transferred to him by delivery only, can enforce the lien. (See case decided this Term.) Though the vendee sell the land to a third person, it is still liable, if his vendee had notice of the lien, either actual or constructive. (McRimmon v. Martin, 14 Tex. R. 318 ; 9 Ga. 86-91; Briscoe v. Bronaugh, 1 Tex. R. 326.)

The only remaining question is,- Did plaintiffs waive their lien by not asking for it in the suit in which the judgment was obtained ? The case of Johnson v. The Adm’r of Murphy, decided at Tyler, 1856, 17 Tex. R. 216, determined that where a note and mortgage had been sued on and a judgment obtained on the note only, and there was nothing in the record to show that the mortgage had not been adjudicated at the same time, a second action could not be maintained to enforce the mortgage. That case, therefore, is not in point. At Common Law it was not usual to apply to a Court of equity to enforce the lien until a judgment at law was recovered on the note. Our Courts having both equitable and legal jurisdiction in the same, it would certainly be competent for the party to embrace both remedies in the first suit; and this we think is the more proper course to pursue. But in the absence of authorities, we are not prepared to hold that the lien does not subsist, as long at any rate as the note is not barred, although judgment has been recovered on the note alone. The equities of the parties in relation to the costs of the second suit need not be now determined. Judgment reversed and cause remanded.

Reversed and remanded.