Green v. Edwards , 15 Tex. Civ. App. 382 ( 1897 )

From a judgment denying appellant a recovery upon a warranty contained in a conveyance of real estate from L.B. Edwards to J.W. Bailey, this appeal is prosecuted. The material facts, about which there is no controversy, are succinctly stated in appellant's brief (pp. 4-8), and no further conclusions of facts are necessary.

When Bailey originally acquired title to the property it was encumbered with a mortgage duly of record, but of this mortgage he and the subsequent owners were ignorant. Bailey conveyed, with the usual covenants of warranty, to appellee Edwards, who afterwards reconveyed to Bailey with like covenants, expressly reserving the vendor's lien to secure $1000 of the purchase money. Bailey then conveyed to J.A. Thomas, and Thomas conveyed to appellant Green, who assumed and paid at maturity to appellee Edwards the purchase money note of $1000. Thereafter the title failed by virtue of a foreclosure of the previous mortgage.

The answer of appellee to appellant's several assignments of error is to the effect that the covenants of warranty in the deeds from Bailey to Edwards and Edwards to Bailey were mutually canceled by the reconveyance from the latter to the former, and this proposition seems to be well sustained by authority. Silverman v. Loomis, 104 Ill. 142, citing Brown v. Metz,33 Ill. 339; 2 Coke on Littleton, sec. 743, and Kellogg v. Wood, 4 Paige, 578.

Appellant seems to concede the correctness of the general proposition that the warranties are mutually extinguished when the estate taken back is as large as that first conveyed, but denies its application here, because of the doctrine prevailing in this State that the superior title remains with the vendor where a lien is expressly retained to secure the unpaid purchase money, contending, therefore, that the estate conveyed by Edwards to Bailey was inferior to that previously conveyed by Bailey to Edwards. This, it seems to us, would be a novel application of an equitable doctrine which exists for the benefit of a vendor of land, in order that he may not be deprived of his land until it is paid for. Such application would amount to this: Since Green, as the assignee of Bailey, acquired, of course, only such rights as Bailey had, because Bailey failed to pay the balance of purchase money due Edwards, Bailey was not liable on his warranty to Edwards, but Edwards was liable on his warranty to Bailey; for otherwise the one covenant would extinguish the other. This doctrine invoked is clearly irrelevant.

In Willis Bro. v. Sommerville, 3 Texas Civ. App. 509[3 Tex. Civ. App. 509], where the right to subject to execution the title of the vendor expressly retaining the lien was denied, this language was used by Chief Justice Tarlton: "We deduce from the authorities, that the title of a vendor conveying by deed expressly retaining a lien to secure the unpaid purchase money is logically the same as that of a vendor who executes a deed without reservation in its terms, and who at the same time takes from the grantee a mortgage for the unpaid purchase money. In both cases the legal or superior title remains with the vendor until the debt is discharged; but in neither case is the transaction purely executory. Stitzle v. Evans, 74 Tex. 596; 3 Pom. Eq. Jur., sec. 1255."

In the case of Silverman v. Loomis, supra, if Green be substituted for Silverman, Bailey for Runyon, and Edwards for Loomis, we have a parallel case to the one at bar, covering even this contention of appellant, for in that case there was a mortgage back to secure the unpaid purchase money, though no notice was taken of that feature in the opinion, the court evidently regarding it as unimportant.

The judgment is affirmed. Affirmed.

Writ of error refused.