
    A. M. Haggard, Appellant, v. Myrtle Scott, Appellee.
    Sales: recovery of purchase price: equitable lien. One who sells personal property and parts with the absolute title thereto can not, in the absence of fraud, accident, mistake or bad faith in the transaction, assert a lien upon the property or the proceeds thereof for the purchase price, either by an action in equity for that purpose, or under Code, section 4015, which provides that no exemption shall exist as against an execution on property sold to enforce payment of the purchase price.
    
      Appeal fromi Dallas District Court. — How. Edmund Nichols, Judge. •
    Tuesday, June 1, 1909.
    Action in equity to enforce an equitable lien upon the proceeds of personal property. A demurrer to the petition was sustained. Plaintiff refusing to plead over; the court dismissed his petition and entered judgment for costs. Plaintiff appeals.
    
    Affirmed.
    
      Burton Bussell, for appellant.
    
      E. W. Dingwell, for appellee.
   Evans, C. J.

The averments of the petition are, in substance: That in December, 1907, the plaintiff sold to one O. E. Scott certain hogs and two horses for an aggregate consideration of $437.25. “That on said date the said O. E. Scott executed and delivered 'to the plaintiff, as evidence and as security for said indebtedness, his one certain promissory note in writing, with Henry Khinehart as surety, in words and figures as follows:” [A copy of a promissory note in ordinary form for $437.25, with interest at 8 percent is set forth at this point of the petition.] It is averred, also, that some time afterwards both Scott and Ehinehart died, and that the estate of each is insolv-. ent. It is also averred: That one Loher, the duly qualified administrator of Scott, sold at public auction all the property of the estate, including the property purchased from the plaintiff. That after such sale the widow appeared in probate court and asked that all the proceeds of exempt- property be set aside to her under the statute, and this was accordingly ordered by the probate court, and the widow received in pursuance of such order the proceeds of the two horses and one pig, amounting to a total of $370. The prayer of the petition is that the plaintiff be decreed to have an equitable lien upon the money so set apart to the widow. He also prays for judgment against her for the full amount of the note, amounting to $472.23. He also avers grounds for the issuance of a writ 'of attachment, and prays the issuance of the same against the money in question. The defendant filed a general equitable demurrer, which was sustained by the court.

It will be noted that the petition does not allege that either Scott dr Ehinehart was insolvent at the time of the purchase of the property; nor does it allege any fact from which fraud, " either actual or constructive, may be implied, nor any fact which created a reservation to the plaintiff of any right in the property sold, or of any lien thereon, nor any fact which could confer upon the plaintiff the right of rescinding the contract and reclaiming his property. The averments of the petition do show that the plaintiff sold his property and parted with title thereto absolutely, and that no element of fraud, accident, mistake or bad faith entered into the transaction. It is clear, therefore, that he had no lien upon the property. This finding necessarily disposes of the contention that he had a lien upon the proceeds.

Tbe argument of plaintiff is that, under section 4015 of the Code, Scott could not have claimed an exemption in the property in question as against an execution for the purchase money. This, however, does not have the effect of giving to the plaintiff an equitable lien, either upon the property or upon the proceeds thereof. Plaintiff’s rights under this section are statutory, and they are no broader than the statute. Plaintiff could only avail himself of this right by bringing himself within the statute. Whether he ever presented his claim to the administrator and filed it in the probate court does not appear. What his rights would have been in the probate court we have no occasion to determine. It is plain to us, however, that the plaintiff can not, by an independent proceeding against the widow alone, invalidate the order made by the probate court in her behalf.

The trial court properly sustained the demurrer, and its judgment is affirmed.  