E. G. Jackson, Adm., v. Josiah Hill, 39 Tex. 493

Walker, J. We are of opinion that the court below erred in overruling the demurrer filed by the appellant to the plaintiff’s petition below. Jackson, the administrator of Frazier, was not a proper party to this suit. If the cause of action had been good against the land claimed by Frazier’s estate, his heirs were the proper parties. The facts appear to be that Frazier purchased land which Hill had sold to Strong, retaining a vendor’s lien to secure a note of $600.

Hill purchased land from Davis, and by an arrangement surrendered Strong’s note in consideration of Strong making his note for an equal amount directly to Davis, which note Hill himself signed as an endorser or security. We do not think that the vendor’s lien attached to the-new note from Strong to Davis, although the parties may have verbally contracted for such a lien.

Frazier’s knowledge of the transaction could not change the law of the case: It is often and always with propriety said that the vendor’s lien is not a subject of contract, but is the creature of legal implication; it is a secret equitable lien, affecting the vendor and the vendee; and though our courts have held that it follows the assignment of the purchase note into the hands of a bona fide assignee, yet it does not follow where there is a novation, a new note given to a party not the vendor, and personal security taken upon the note.

Authorities are referred to in support of the judgment of this case, but we regard them as totally inapplicable to the facts. The judgment is reversed and the cause dismissed. Reversed and dismissed.