George Glasscock v. Thomas Glasscock's Adm'r and Another, 17 Tex. 480

Wheeler, J. The principal question is, whether the payment by the appellant, of more than his share of the purchase money, gave him a lien upon the premises for the repayment of the money advanced for the other joint purchaser.

In Sugden on Vendors, it is said, “ that where two or more persons “ purchase an estate, and one, for instance, pays all the money, “ and the estate is conveyed to them both, the one who paid “ the money cannot call upon those who paid no part of it to “ repay him their shares of the purchase money, or to convey “ their shares of the estate to him ; for by payment of all. the “ money he gains neither a lien nor a mortgage, because there “ is no contract for either ; nor can it be construed a resulting “ trust, as such a trust cannot arise at an after period ; and “ perhaps the only remedy he has, is to file a bill against them “for a contribution.” (2 Sug. on Vend.

Ch. 20, Sec. 1, p. 387 of 6th Am. from 11th London edit.) So in Dart on Vendors, it is said, “ In the case of joint purchasers, if one joint tenant “ lay out money in repairs or improvements, which may be “ either necessary, or sanctioned by the other joint tenants, or, “ in case of renewable leaseholds, advance money for the ex- “ pense of a renewal, he has a lien on the estate for the amount; “ but if one purchaser advance more than his share of the “ purchase money, he acquires no lien on the estate ; nor, it “ would appear, has he any remedy except a suit for contribution.” (Dart on Vend., Waterman's Am. edit., 433-4.) “ And,” it was added, “ where purchasers stand in the relation “ of partners, any ad vantag e. se cur e d by one—e. g. the renewal “ of a lease, or an abatement of incumbrances,—enures to the “ the benefit of the others.” (Ib.) These authorities, it would seem, must be decisive of the' question, against the right of lien claimed by the appellant.

But, however that might be, on general principles, or whatever might have been the rights of the appellant, if he had been compelled to pay the money for his co-purchaser, as his surety, we are of opinion that the particular facts and circumstances-of the case repel the supposition of any intention to retain or create a lien as between the parties, and amount to a virtual waiver of it, if in any event such lien would have arisen, or subsisted.

The agreement of the parties effecting a severance of their joint interest, the mutual releases passed between them, the stipulation as to the manner of making the title upon payment of the residue of the purchase money, and the making of the payments by the appellant voluntarily and before any fell due, and procuring the title to the property in his own name, repel the supposition that any right of lien was relied on or intended.

Where, prima facie, a lien would exist in favor of the vendor, for unpaid purchase money, if it affirmatively appear, from the circumstances of the ease, that none was intended, it will be deemed that none exists. (Id. 118, 350 ; 4 Kent, Com. 152 et seq.; Story’s Eq., Sec. 1220-1-2, 1217n.) Without commenting upon the facts, it may suffice to say, we think it clear, under the circumstances of the case, that a right of lien did not subsist in favor of the appellant.

And it is unnecessary to inquire what might be the right of a joint purchaser, or a surety paying money for his principal in a case differently circumstanced. It cannot affect the rights of the appellees in the premises^, that the appellant, anticipating the maturity of the last payment, and preventing the administrator of the deceased joint purchaser from making the payment at maturity, procured the conveyance to be made to himself. He must be deemed to hold the title in trust for the appellees.

It is insisted for the appellant, that the proof shows the payment by him of the whole of the purchase money ; as well the first as the subsequent payments ; and consequently that the Court erred in not giving him judgment against the estate of the deceased joint purchaser for half of the entire purchase money. The evidence does not relieve the case, upon this point from doubt.

The witness to whom the money was paid stated that he received the money at the hands of the appellant; but it was in the presence of the other partner in the purchase; and it is insisted on the other hand, and not without reason, that, as they were then partners in business, the payment for their joint purchase thus made, must be presumed to have been made with their joint funds ; though received at the hands of one, that both contributed equally to the payment. Then, there are the statements or admissions of the deceased partner, that the appellant made the payment.

But these statements appear to have been made in casual conversations; and there are strong circumstances tending to the conclusion that, if the whole payment was made by the appellant, it mnst have been subsequently adjusted and settled between them. Their joint purchase was subsequently severed and partitioned between them, without any mention, as appears, of any inequality in the payment which had been made. It may have been taken into the account in settling their respective parts in that partition ; that, released to the appellant, may have been the more valuable.

Then again, the business in which they were engaged, it seems, was afterwards suspended and closed, and their partnership dissolved. It would seem highly probable, at least, that in the settlement of their partnership business, this payment was taken into the account. In the meantime the partner, since deceased, was disposing of his part of their joint purchase.

It certainly is not consistent with the ordinary modes of doing business, that, under the circumstances, this payment should have remained a charge against the latter up to the time of his death, and that the appellant should have preserved no better evidence of its continued subsistence. Considering the effect to which the decision of the fact, in the Court below, is entitled, we cannot say that it was so manifestly against the evidence as to warrant a reversal of the judgment; or a reformation of it in that particular.

For the advances made by the appellant for improvements, during the partnership, he was entitled to a lien on the property ; but for those made after the property had come into other hands, and when he was forbidden to make them by the rightful owner, he was not entitled to compensation, unless perhaps out of the rents. But the rents which he had received were applied by the judgment of the Court to pay for improvements, and as they exceeded the value of those for which he had a right of lien, he cannot complain of the judgment as respects the improvements.

And upon the whole we are of opinion that there is no error in the judgment, and that it be affirmed. Judgment affirmed.