S. Rogers and others v. I. N. Green and another, 35 Tex. 730

Walker, J. On the twenty-fourth day of November, 1857, Ira N. Green and wife sold to Thomas H. Rogers a tract of land situated in Kaufman county, in which was contained 1237acres. The consideration fertile sale of the land was $1845. Green and wife executed to Rogers a bond for title, in which instrument is acknowledged the receipt of $1045, upon the sale and delivery to Green and wife by Rogers, of a negro girl-named Niece, whose price was fixed at that sum.

The title bond further recites that Rogers- executed- and delivered to Green and wife his promissory note-for eight hundred dollars, bearing ten per cent, interest per annum, and due twelve months from date. The-note fell due on the twenty-fourth day of November, 1858. Green and wife brought suit upon the note in. the District Court of Smith county, and on the twentieth of December, 1860, recovered a judgment against: Rogers, in personam.

In this action no- effort was made on the part of Green to enforce his vendor’s lien, but he evidently elected between the two remedies which he undoubtedly had, to take his personal judgment against Rogers, rather than to press his vendor’s right against the land. It is useless for counsel for appellees to insist virtually, that Green had a right to make a. second eleclion, almost ten years after he had made his first. He .abandoned his vendor’s lien when he sought to obtain other securities, and for what we know, did obtain them.

Numerous cases are referred to in the briefs and arguments of both parties, but we find but one case ■cited which bears directly upon the case at bar. This is the case of Boeder v. Robson; 20 Texas, 754. This case, by the very able opinion delivered by Mr. -J nstice Wheeler, establishes the following doctrine: Where there is a default in the payment of the pur■chase money, the vendor may sue to recover back the land ; and he may ask for alternative relief, and have a .recovery of the money in case he failed to recover the land.

But when the vendor sues merely to recover the money, he thereby affirms the contract, and asks for its ¡specific performance. This case supposes a doubt where the plaintiff sues for the land and offers full equity, by refunding so much of the purchase money ¡as he has received, and thus places the defendant in statu quo. This does not appear to have been done in the case at bar. The appellees insist that their suit is not against the heirs of Thomas H. Rogers as such, but .against certain persons who may be the heirs, as trespassers.

The truth is, that the appellant, Sam Rogers, is the administrator of the estate of Thomas H. Rogers ; and we are clearly of the opinion that when Green and wife made their election to proceed against ’Thomas H. Rogers in his lifetime, on his promissory note, and did obtain a personal judgment, they should have proceeded in the manner pointed out by law to -establish their claim against the estate; and if they have failed to do so, we cannot see that they are entitled to much condolence or sympathy in a court of equity ;if they should now find themselves cut off by their own laches, or the laws of limitation.

Wilson, the intervenor, is in no better situation than Green. He is a purchaser pendente lite. The case at bar falls so completely within the principle of Boeder against Robson, and that case is so clearly reasoned, and the law so plainly laid down, that we deem it unnecessary to refer to any other authorities, though we think it undoubted that many, of the highest respectability, might be cited. We have examined the case of Browning against Estes, 3 Texas, 462, and other cases referred to in the brief of appellees, but do not find them applicable to the case at bar, the facts being so essentially different.

Neither the case of Baker v. Ramey et al., 27 Texas, 52, nor the case of Dunlap’s Administrator v. Wright, 11 Texas, 597, decides any principle opposed to the view we take of this case.

It is very true that a vendor of land who retains a lien for his purchase money has a superior right to the land as against his vendees until the purchase money is paid, but this is only true where the lien is retained and perpetuated ; and there are different modes by which the lien may be lost, such as taking personal security for the deferred payments, a mortgage on other real or personal property, or by so long neglecting to enforce the lien as to render the doctrine of stale claim or laches applicable, or in the manner pointed out in Roeder v. Robson, by electing another remedy. (See also Boss v.

Ewing and others, 17 Ohio, 500, and numerous authorities therein cited). Whatever other points are raised in this case are immaterial. The judgment of the district court must be reversed and the cause dismissed. Wilson acquired no title by his pureliasependente lite, and Green must be remitted to the remedy he originally elected. Reversed ard dismissed.