The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1880-03-20

chartered powers anu PIllN'Rua WI,
deemed an entire thing and sold ~ such, ana
n levy was held 10 embrace the whole road
bed and track md entire line OF railroad,
whether situated In tho same county or NOT,
and the sumo could bo advertised and sold NJ
the court house door Of tho county OF the
principal office, Practically without groAl
sacrifice, tho road-bed could not be sold OK
cent rs nm entirety la the particular com
plnined Of tho above statute lsn0l materially
changed by subsequent lcglslalon' H. D.
art. 1862 Reversed and remanded,
SC. uiIarl VI. j. u. Wells, Appeal from
Harris, Opinion BY Bonner, j, Aler ro'
view Of the facts tho court considered lho
third and fourth assignments OF error ~ pre-
senting the material question IN the case,
which are considered together ~ Tho court
erred In allowing plaintiffs, In rebultal, to
read In evidence the Judgments IN layor OF
James Wells against Girard, Henderber,g
and Vcddcr, over the objections thereto made
by tho defendant, as In her bill Of exceptions
on illc, 4, The judgment Is contrary, to tue
law and the evidence, because defendant ny
her evidence showed that she was the owner
of tho title which Whitcomb acquired in the
property sued for, and said Judgment In favor
Of Wells read In evidence In robuttal by tho
plaintiff, having been rendered years after
the deeds 10 Whitcomb and Cutler were 70,
corded, whereby notice was given Of sald
deeds MS neither Whitcomb, Cutler,
nor any ono claiming unlor them,
down 10 and including defendant, made
n party to the suit in which tho judy
mont was rendered the same, and the
,al, ALL lan1 MADAM IA opnlI nnI pnanI thn III.
Ito of tho defendant in the property. Under
our decision there sa distinction rs alice
ting directly tho question Of title, between
those cases in which the superior TITLE. In
sales of land, remains Ia the original vendor,
and those In which no parts with this supo'
rlor title, and has SIMPLY u lien ON the
land TO secure tho payment of the
purchase money. Although n sub.
sequent purchaser Is n proper party In all
suits to enforce prior lien, yet he may notb
necessary party except to bar his equity OF
redemption. If the superior title remains in
tho plant Il in the foreclosure suit and the
title of tho subsequent purchaser is sub
ordinate thereto, the mere fact that he was
not made n party to the enforcement of the
lien for the purchase money against the orig
inal vcndees, although il might operate to
prevent any prejudice TO his right TO the eq'
uity of redemption, yet II could not prcju-
dice the superior title of the plaintiff. If
plaintiffs title was superior before the judy
ment Of foreclosure and the sale Hereunder
to himself, this would not make IL less so. An
examination of tho many cases from this
court cited by appellant, in which the subse-
quent purchaser, or incumbMncer If known,
has been held to be a necessary party TO n
suit to foreclose prior lien, in order to at-
feet his title, will be found to be those in
which no held under tho superior legal title,
subject only 10 claim for lien sought TO
be enforced; Ms in cases of
strictly vendors liens arising by inn
plcation upon an absolute deed for land, or
mortgages given to secure debt, not the
purchase money. The rule, however, is diff
ferent In those cases in which 10 secure tho
rights of the vendor of land and TO enforce
the performance or cancellation of the con-
tract without pre- udice to those rights, the
superior title does not pass to the vendee in
tho first instance, but remains with the vend-
or, either because the contract was executory
or where bond for title has been executed
upon condition Of payment, or where a mort
gage for the unpaid purchase money was ex-
ecuted by tho vendee simultaneously with
the deed, or where an express lien is retained
as in the case now before the court, in the
deed itself, for the payment of the purchase
money. Webster Il Williams vs.. Mann
decided at present term. Whatever techni
cally may be the distinction between q
mortgage given simultaneously with the
deed to secure the purchase money, and o
lien therefor expressly reserved in the deed
itself, under our DECISIONS their practical
effect seems to be the same In such
cases the superior title remains in the
vendor, and subsequent purchaser being
charged with notice of whatever is apparent
upon the faco of his chain of title, takes sub,
ect to be defeated by this superior title. TIC
avoid this he must himself do equity before
he can ask equity and redeem by payment Of
the purchase money. If the original vendor
seeks to protect his rights by suit in the ma
ture of bill to foreclose and bar the equity
of redemption, the subsequent purchaser, |
made party, will be bound thereby; If, how
ever, he should not be made such party, al
though his equity of redemption might no
thereby be barred, yet in contest of It'll,
between him and the original vendor, the su
perior title of the latter must prevail, unles
in proper case, under appropriate allega
tons and proof, the equities of the forme
can still be enforced; neither the allegation
nor evidence, on the part of appellant, pre-
sent such case here for our consideration
In our opinion the above alleged errors ar
not well taken. Affirmed.