L. Orme and wife v. H. Roberts and another, 33 Tex. 768

Walker, J. In Briscoe against Bronaugh, 1 Texas 326, it ■ was held as follows: “It is a doctrine of the civil law, and of the equity jurisprudence of the United States and England, that a vendor has a lien upon the thing sold for the purchase money, without any special agreement for that purpose. “ The vendee holds in trust for the vendor until the purchase money is paid, and this trust attaches to the land or thing sold, and follows it into the hands of subsequent purchasers with notice.

This equitable mortgage exists in every case of sale where the money is not paid, unless otherwise agreed by the parties. ' Prima facie the lien exists, and it lies on the purchaser to show that the vendor agreed to waive it. • “Registration acts do not embrace equitable liens not evidenced by writing. . “ It is a general rule that whatever is sufficient to put the party upon inquiry amounts, in judgment of law,’ to notice. Lis pen-dens is constructive notice.

A sale pendente lite is a nullity, as against the plaintiff in the suit.” In Blankenship against Douglass, 26 Texas Reports, the court hold as follows : “ It seems to be 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.

The above doctrine is qualified by the registration laws of particular States, prescribing the effect of unrecorded conveyances and mortgages upon the rights of purchasers and creditors. . “ A resulting trust is beyond the contemplation of our statutes of registration, respecting the rights of creditors, and will be protected against the legal lien of a judgment creditor or his assignees, although they had no notice of the trust-, as they are not in this respect entitled to the preference over prior equities accorded to bona fide purchasers for valuable consideration without noticé. “ A purchaser at sheriff’s sale under execution, who at the time of the sale had notice of outstanding equities which existed against the property at the time the judgment was rendered, takes the property subject to such equities, and acquires only such rights as the defendant in execution possessed. “ The opinion is intimated but not authoritatively expressed, that a purchaser at sheriff’s sale under execution, without either actual or constructive notice of an unregistered deed or subsisting equity outstanding against the property, would take the-property discharged of all claims arising under such deed or equity.” The case of Ayres against Duprey, -reported in 27 Texas, 593, is quoted by defendant in error; but he certainly has misconceived the authority of the case, as it bears strongly against him.

The court there hold the following language : “ A subsequent purchaser having notice of a prior unrecorded deed, can claim no benefit from the omission to record it. “ To constitute a person a bona fide purchaser within the meaning of the statute, he must, upon the faith of the purchase of the property, have advanced for it a valuable consideration.

If he was a creditor antecedent to his purchase, and paid for the purchase by a credit on' his demand, then, inasmuch as he has parted with no consideration on the faith of the purchase, he is not a bona fide purchaser within the meaning of the statute.” These principles are familiar to the law as laid down in the different States of the Union.

In Ohio it has been held, in a well considered case, that the vendor of land, by taking a mortgage upon the land sold to secure the payment of the purchase money, does not extinguish his prior equitable lien; and the lien of a judgment creditor, obtained between the date of the mortgage and the time when it is recorded, will be postponed to the vendor’s lien. (Boas v. Erving, 17 Ohio Reports, page 500.) The pleadings and facts show that this suit is brought by Orme and wife against Roberts on a note given for the purchase, in part, of the land in controversy. W. E.

Massenberg, intervenor, sets up that he is the owner of the land by purchase at sheriff’s sale; he bought the land at sheriff’s sale to secure a pre-existing judgment in his own favor, and is not therefore a bona fide purchaser in the eye of the law. On the day of sale, positive and direct notice was brought home to him of the plaintiff’s equitable lien on the land; his title must therefore be postponed to the equitable lien of the plaintiffs.

The parties having waived a jury below, this court will render a judgment in favor of the plaintiffs for the amount which may he found due them as purchase money of the land, with ten per cent, interest from the date of judgment until paid, with an order of sale of the premises covered by the vendor’s lien; and the cause is remanded to the district court to carry this decree into execution. Rendered and remanded.