D. T. Robinson v. F. M. McWhirter, 52 Tex. 201

Moore, Chief Justice.

Thoughit be conceded that, on the principles and rules of equity, McWhirter is entitled to a vendor’s lien against his vendee (Bennett) and all others taking and holding the land subject to the incumbrances with which it was chargeable in his hands, (as to which, however, as it has not been questioned or discussed, we need not express a definite opinion,) it must be admitted that the note given by Bennett to Callicott—being also for part of the purchase-money and secured by a deed of trust on the entire land, executed contemporaneously with the deed from McWhirter to Bennett to discharge a note due from McWhirter to Oallicott, which was a lien upon the land when purchased by Bennett—was a superior lien to the implied equitable lien in favor of the note upon which this suit is brought.

To hold otherwise "would be to say that equity by implication places all the notes given for the purchase-money of land upon the same footing, notwithstanding the parties may have otherwise stipulated between themselves; or, in other words, to say that a lien will be enforced which equity infers from the silence of the parties, and their failure to make any stipulations for the security of part of the purchase-money of land, will operate to alter or lessen the security which has been stipulated for in reference to another part of it. The bare statement of this proposition is a sufficient answer to it.

It is contradictory of the principle out of which the vendor’s lien springs. By the assignment of the note given to Oallicott by appellant Robinson, he held the superior lien to that of McWhirter.

To hold that because he, by the advice and persuasion of Mc-Whirter, has accepted the land in discharge and satisfaction of his debt, and especially if, as is alleged, it is not worth more than this debt, he took the laud subject to the payment of the note to McWhirter, would be grossly unjust, and in effect deprive appellant of the superior lien which he held by the contract securing the Oallicott note by a deed of trust upon the entire land.

The most favorable view which can be taken of the case for McWhirter is, that if appellant voluntarily, and not at the special instance and solicitation of appellee, took the land in satisfaction of his lieu, appellee might have it sold in satisfaction of his vendor’s lien, if he have any, but the proceeds of the sale to be first applied to the equitable light of appellant, by reason of his accepting the land in discharge of what was due him on the Oallicott note. Mrs. Bennett was not a necessary party to the suit.

The court, therefore, did not err in refusing to order scire facias for her representatives. [Opinion delivered November 21, 1879.] The questions raised, by the other assignments of error will not probably arise on another trial. For the error of the court in sustaining the exceptions to appellant’s fourth amended answer, the judgment is reversed and the cause remanded. Reversed and remanded.