Robert M. McAlpine and another v. W. H. Burnett and others, 23 Tex. 649

Roberts, J. It is well settled, that a vendor’s lien cannot be enforced against one holding title under the first vendee, by deed, provided the purchase has been made, and purchase-money has been paid before, or without notice, of the lien. (Mackreth v. Symmonds, 15 Ves. Rep. 336 ; 2 Sugden on Vend. 74.) Where the deeds constituting the chain of title under which the last purchaser holds, show that the purchase-money has not been paid, as that one or more of the notes is not due, he will be held to have had notice of the lien; and where they do not, the notice may be otherwise established. (Irvine v.

Campbell, 6 Binney, Rep. 118.) There is nothing recited in -the deeds, under which the last purchasers held, in this case, calculated to give them notice, of the lien. The question then is, must the last vendees, Hamlett and Perry, assume the burden of proof, and allege and prove, that they are bond fide purchasers, for a valuable consideration, paid before notice of the lien: or, must McAlpine & Co., to follow their lien, allege and prove, that they had notice, or had not paid a valuable consideration for the lot. We are of opinion, that the burden rests upon the party claiming the lien.

They are seeking to set up and enforce a tacit equity against persons standing on a legal title, complete and fair on its face; and therefore they must assert and establish the facts which constitute their equity. The principle is manifest, upon the mere statement of the proposition, for every complete legal title, prima facie, carries with it, and covers the equitable title. If in any case, it does not so include it; in fact, the party claiming the equitable title must aver and prove it. The authority relied on, in opposition to this view, supports, rather than overthrows it. (Howlett’s Heirs v.

Thompson’s Executors and Bevil, 1 Ired. Eq. Rep. 369.) Thompson held the title to the land, in trust, for the security of money advanced by him for Howlett to Johnston, who had purchased it under execution against Howlett. Thompson advanced the money under an agreement to reconvey to Howlett, upon repayment of the advance, with interest. Instead of that, he conveyed the land to Bevil, who was proceeding at law to eject Howlett, upon the strength of his legal title. Howlett filed a bill, setting up his equity, and charging Bevil with notice of it previous to the payment of the purchase-money by him to Thompson.

And upon these facts being established, it was decreed that Howlett should “be let in to redeem the land, as having been, in effect, mortgaged for the repayment” of the money advanced, and interest thereon. (Opinion of Gaston, J., 875.) There, Howlett had a secret equity of redemption, which could have availed him against Bevil’s legal title, only by his alleging and proving the facts out of which it arose.

The last vendees in this case, Hewlett and Perry, do not occupy the position of subsequent purchasers, having to assert the superiority of a junior title against an elder title, by showing that they were purchasers for a valuable consideration, without notice; because they have the legal title, and are not opposed by one having any legal title. The reason why a subsequent purchaser, holding under a junior deed, must assume the burden of proof, is, that he has the weaker legal title, and must set up his equity, to aid it in resisting the elder legal title.

In this case, Hamlett and Perry stand on their legal title. McAlpine & Co. claim an equity. The burden of proof is on them to establish their equity. They sought to do so, by averring that Hamlett and Perry had notice of their lien at the time of their purchase. This was specially denied. The jury found against the notice, and the evidence was not such as to require us to set it aside. The witness stated, that he gave notice to one of them, about the time of the purchase, but he could not say whether it was before or after.

The plaintiff below had alleged that it was given before the purchase, and it. was incumbent on him to prove it as alleged. There was no issue made as to the payment of the purchase-money. The plaintiffs might have sought to raise an equity by alleging that the purchase-money was not paid before notice, or that the last vendees held under a voluntary conveyance, as well as that they had notice at the time of the purchase. They selected their ground, and that alone was in issue. We think there is no error in the judgment, and therefore it is affirmed. Judgment affirmed.