Burford v. Rosenfield , 37 Tex. 42 ( 1873 )

Walker, J.

The record in this case is very defective. There is no assignment of errors, the statement of facts is very defective, and it is with difficulty that the case can be understood.

In the motion for a new trial, one question is presented. It is claimed that the court erred in deciding that the judgment in the case of Wm. Watts’s heirs v. Robert Robson, was a judgment foreclosing the mortgage lien on lots 4 and 5, in Block 9, in the town of Columbus.

Had that judgment been appealed from, and the questions therein presented properly brought before us, we should probably have decided it upon the authorities referred to in appellant’s brief.

The jury should undoubtedly have passed upon the mortgage as well as the note, but we cannot hold that the judgment was entirely void, nor can we consent that it should be impeached in the collateral manner proposed by appellant. No appeal was taken from it. Robson has acquiesced in it, and those claiming in privity with him are estopped from calling it in question. (See Lee. v. Kingsbury, 33 Texas, 71; Tadloch v. Eccles, 20 Texas, 782.) The testimony of Judge Smith shows that Harris bought the lots of Robson, pending the action of Watts against Robson. Lis pendens is constructive notice, and a sale, pendente lite, is a nullity as against the plaintiff in the suit. (1 Texas, 326.) In this case the court hold that the vendor’s lien exists in every case for the purchase-money, unless otherwise agreed; and the onus is on the vendee to show that the vendor waived the lien.

This question, however, needs scarcely be discussed or decided in this case. The written acknowledgment of Harris, that Alley had paid the purchase-money, and that the deed was made to him at his own request, binds the parties. This writing of Harris also refers to a title bond from Logue and Whitfield to Harris, dated in 1854, for the lots in question, and the deed was made to Alley at his request.

Before the homestead right can attach against the vendor, the purchase-money must be paid; and the wife could not interfere with the right of the husband in arranging as to the payment of the purchase-money; and if he saw proper to do so, he could renounce and surrender the land, unless his conduct were tainted by fraud.

The bond from Alley to Harris shows that the notes sued on were given in consideration of the purchase-money. There is no error in the case to warrant the reversal in the judgment. It is therefore affirmed.

Walker, J.

As mentioned in our former opinion in this case, the statement of facts is defective, but the admissions of counsel for appellant, in their brief, we permitted to some extent to supply what was evidently an omission from the record. He says, “ the only question for the court to determine in this case “ is the effect of the sheriff’s sale, made under order of the court, “ upon the judgment rendered on the 11th day of April, 1853, “ in the suit of Watts’s heirs v. R. Robson.”

Again it is said in the brief, “ we think that the purchaser of “ the lots Hos. 4 and 5, in Block 9, in the town of Columbus, " under the sheriff’s sale made under the order of sale in the “ judgment of Watts’s heirs v. Robson, obtained no title.”

These remarks are made in the brief of counsel who appears to have tried the case below; but the case has now, on rehearing, passed into the hands and is under the management of other very able counsel, who insist upon the rehearing, because the statement of facts is deficient in not showing that a sale was made in the suit and under the order referred to; that this court is not authorized in taking any notice of that which the original counsel evidently regarded, and so argued to us, as presenting the main question in the case.

There is some question as to how far the admissions of an attorney, made in open court and upon submission of his cause, are to be taken against his client; but when we take into consideration that it was the duty of appellant’s counsel to prepare for the record a full and complete statement' of facts, and, not having done so, he admits a fact of a material nature, which ought to have been found in the record, we are disposed to treat the admission with much consideration. We think this case was rightly decided in our former opinion, and therefore find no reason to change, but affirm it.

Affirmed.