W. Watt, Administrator, etc., v. White, Smith & Baldwin, 33 Tex. 421

Walker, J. This is a contest between'judgment creditors for priority of lien on lands belonging to the estate of William Coyle, deceased. Coyle purchased lands situated in Harrison and Panola counties, from John Watt, in the year 1858, executing to Watt his two promissory notes dated December 18, 1858, for the sums of $2475 33 each, one due January 1, 1860, the other January 1, 1861. Watt transferred both the notes; the one which fell due January 1, 1860, to the appellees, and the other to John Cuthbertson.

After maturity of the first note, the appellees commenced suit by attachment against Coyle, in the District. Court of Caddo Parish, in the State of Louisiana. The attachment was levied on personal property, which was appraised at $2725. Coyle replevied the property, giving bond in twice its appraised value. This action lingered in court without final judgment until 1868. In the mean time, Coyle died about the year 1868, and S. L. Lewis was appointed curator of the succession and was made party to the suit. W. ft.

Downes was the executor of the last will of Coyle, and was appointed and qualified and took out letters in Harrison county, Texas. In 1867, the appellees commenced another action upon their note, in the District Court of Harrison county, pending their action in Louisiana. They made Downes, the executor of Coyle’s will, a party, and prayed judgment and an enforcement of the vendor’s lien.

On the twenty-sixth of February, 1868, the District Court of Caddo Parish, Louisiana, rendered a judgment in favor of appellees for the full amount of their note with interest, sustaining the attachment and directing payment by the curator in due course of administration. But, for some reason not easy for this court to understand, they amended their petition in the District Court of Harrison county, setting up their Louisiana judgment, and praying an enforcement of the lien on the land purchased by Coyle from Watt.

In the mean time, Cuthbertson, the assignee of the second note, had brought a suit on his note in the District Court of Harrison county, but he died before obtaining judgment, and William Watt, the appellant, had made himself party plaintiff to the action, and had also intervened in the action of the appellees, White, Smith & Baldwin. Both parties obtained judgment at the same term of the District. Court of Harrison county for the year 1868, and the court directed the sale of the land, and the proceeds of sale to be equally divided between the two judgments, they being the same in amount.

The only question for us here to determine is, was this judgment erroneous ? Both the notes were secured by the vendor’s lien, and transferring the notes transferred the lien to the respective assignees. • Did White, Smith & Baldwin, then, abandon their lien by resorting to an attachment upon other property of the vendee, situated beyond the limits of the State, and invoking the aid of a foreign forum ? By the record it would appear that they obtained a security ample for the payment of their entire debt and costs.

They were secured by the replevin bond, which was given in twice the value of the property attached, and that was more than the amount of their debt at the time. We are clearly of the opinion that they must be held to have abandoned their vendor’s lien, and they must exhaust the security which they obtained by their proceeding in attachment, or show that it is insufficient for the payment of their judgment, before they can come upon any other assets of the estate of Coyle. Equity will not allow one creditor to accumulate unnecessary securities for himself, to the prejudice of other creditors.

The vendor’s lien is itself the creature of equity, and he who seeks its aid must do equity in all things pertaining to it. The judgment of the appellees will be postponed to ttíe judgment of appellant, on the lands in controversy, and also to subsequent mortgagees, and judgment creditors, if there be such. The judgment of the district court is reversed and cause remanded. Reversed and remanded.