B. C. Oberthier and others v. Mark Stroud and another, 33 Tex. 522

Walker, J. This is an action.to try title. The parties deraign title from the same patent. A. C. Whatley purchased the land in- controversy from Millican, and, as appears from the evidence, paid for it with money belonging to his father, A. J. Whatley, and his sister, Amelia Reynolds; and it would appear that by a mistake of the draftsman, made at the execution of the deed, the'title was made to him, A. C. Whatley, instead of his father, A. C. Whatley, as was intended. He was the trustee of an implied trust, and held the land for the use of his father and sister.

The appellees claim under a sheriff’s deed to the land sold as the property of A. C. Whatley. At the time of the sale (by the evidence of the witness Wasson) notice was given to all bidders that A. O. Whatley had no title to the land, and the maxim caveat emptor was made to apply. The judgment lien upon which the sheriff sold the land was no better than the title by which the judgment debtor held it; and a purchaser at such judicial sale takes the land subject to all the equities which are ágainst it, and can derive no better title than that which was held by the judgment debtor.

That is all the sheriff can sell or the vendee buy. But A. O. Whatley had only the legal title in trust for his father and sister, and the purchaser at sheriff’s sale took nothing. In Blankenship v.

Douglass, 26 Texas, 225, the court say: “It seems well settled that a judgment lien on the land of a debtor is subject to every equity which existed against the land in the hands of the judgment debtor at the time of the rendition of the judgment ; and that courts of equity will protect such equities against the legal lien, and will limit that lien to the actual interest which the judgment debtor has in the estate.” A resulting trust is protected against the operation of the registration laws. But the court erred in excluding the evidence of A. O. Whatley.

He was called to testify against his interest, and was therefore competent. The judgment of the district court will be reversed and the cause remanded to be proceeded in in accordance with this opinion. Reversed and remanded.