Isham Autrey, Adm'r v. G. S. Whitmore, 31 Tex. 623

Caldwell, J. —It is recognized as a correct principle of law, that a vendor of real estate has an equitable lien thereon, to secure the payment of the purchase-money, and this lien exists against the vendor and all subsequent purchasers with notice, actual or constructive. (1 Tex., 329; 4 Tex., 13; 12 Tex., 13; Story’s Eq., §1216-1226.) This is the doctrine of courts of equity. Its origin dates back beyond the system of registration, now so universal in this country, and it may be safely said, that the reasons which gave rise to it no longer exist.

Hence it is that some of our most eminent jurists, while greatly deploring the existence of such a doctrine, admit that it is now too firmly engrafted on our system of jurisprudence to be disturbed otherwise than by legislative action. It seems to us, therefore, that a rule which gives rise to vague and conflicting equities, to uncertainty and confusion in titles, ought not to be extended, so as to embrace a class of cases specially provided tor by direct and positive statutory provisions. Neither natural justice nor necessity requires it.

It follows, then, in our view, that the doctrine of “ vendor’s lien ” does not apply in this state to sales of real estate by an administrator under the orders of the probate court.

The administrator is required to “take a mortgage upon the property sold, to secure the payment of the purchase-money,” and should the administrator neglect to take such “mortgage,” he and his securities are liable on their bond to “ any person interested in the estate.” (Paschal’s Dig., Art. 1333.) To hold otherwise would be to charge an innocent subsequent purchaser with the delinquency of an administrator, and in effect be a judicial repeal of a statute coming within the legitimate scope of legislative power.

It is insisted on, however, that the recital in the deed was sufficient to put a prudent man on inquiry. Having excluded administrator’s sales from the general rule, to this it is sufficient to reply, that the record of deeds disclosed no mortgage retained as the law required, and the subsequent purchaser of the administrator’s vendee had a right to presume that none existed. He stands upon the law, and is entitled to its protection. The judgment of the court below is in all things Affirmed.