
    Phillips v. Myers et al.
    1. Lien: tax sale: waste. The holder of a certificate of purchase at tax sale has a lien on the property covered thereby, and may maintain an action to enjoin the removal of buildings therefrom, but such lien is waived as to buildings where, after their removal, he asks and obtains judgment for their value against the parties removing them, and has such judgment established as a lien upon the buildings; the lien so established dates only from the judgment and is subject to other liens attaching prior to its rendition.
    
      Appeal from. Harrison CirovAt Court.
    
    Wednesday, December 15.
    This is an action against James Myers upon four promissory notes, each for the snin of $110, and to foreclose a mortgage executed to secure the same. The intervenor, Foster, claims a lien paramount to the mortgage upon a portion of the mortgaged property. The court rendered judgment against James Myers upon the notes, and foreclosed the mortgage, but adjudged the lien of the intervenor upon the building situated upon a portion of the mortgaged property to be superior to that of the plaintiff under the mortgage. From this portion of the decree the plaintiff appeals.
    The facts are stated in the opinion.
    
      Barnhart da Cadwell, for appellant
    
      W. S. Shoemaker, for appellee.
   Day, J.

I. The facts in this case are very fairly set forth in appellant’s argument and are substantially as follows: On the day of November, 1875, the intervenor, (y pp ;poster, purchased at tax sale, for the delinquent taxes of 1873 and 1874, lot sixteen in block eighteen, in the town of Logan, on which was then situated the building in controversy in this action, and received the treasurer’s certificate of • purchase therefor. He subsequently paid, from time to time, the taxes on said, property for the years 1875, 1876, and 1877, so that his lien upon the property amounted to $468.85. On the 3d day of January J. M. Phillips acquired the aforesaid property by sheriff’s deed, and on the 20th day of May, 1878, he sold the building on said lot to the defendant James Myers for $440, in four equal instalments, evidenced by four promissory notes secured by a mortgage on two lots and the building aforesaid, the mortgage stipulating that the building should be removed upon lot fifteen, in block eighteen, one of the lots mortgaged and adjoining the lot on which the building then stood. About the 21st day of May, 1878, J. M. Phillips indorsed and transferred the four notes to his son Nathan C. Phillips, the plaintiff, in consideration of about $600 in bonds of Harrison county, Texas, then transferred to him.

The defendant Myers at once began making preparations for the removal of said building from lot sixteen to lot fifteen, but before he had accomplished his purpose, on the 28th day of May, 1878, he was restrained from removing said building by a writ of injunction issued in an action brought against him by the intervenor, the petition alleging that'he was the holder of the certificate of purchase aforesaid, and that by such removal great waste and damage would be done to said property to his pecuniary detriment.

On the night of the 31st- of May, 1878, one Isaac Case, pretending to have purchased said building and leased lot fifteen of defendant Myers, completed the removal of the building to lot fifteen. Foster thereupon amended his petition in said action against Myers, making Case a party defendant, alleging the removal of said building as the result of a fraudulent combination on the part of said Myers and Case for the purpose of evading the writ of injunction theretofore issued and asking that defendants be restrained from making any further transfer of said property, or creating any charge thereon, and that an account be taken of the waste and damage committed, and fcliat plaintiff liave judgment therefor, and that the same be declared a lien upon said lot fifteen, and that execution issue for the sale thereof, with said building, for the satisfaction of said judgment. Thereupon a second writ of injunction was issued and served upon the defendants Myers and Case on the 6th day of June, 1878. Whilst these proceedings were pending, on the 12th day of March, 1879, the inter■venor procured his treasurer’s deed under the tax sale aforesaid.

On the 3d day of July, 1879, the plaintiff commenced the present action against Myers and wife to recover the amount of the notes and foreclose the mortgage. The defendants answered, alleging that J. M. Phillips had falsely represented that said building was, at the time of sale, free from liens and incumbrances when Foster had a lien thereon by virtue of the tax sale, and setting up the injunction proceedings aforesaid then pending, and alleging that said notes were not transferred to plaintiff until long after the commencement of said Foster’s action, and long after the maturity of the firs! note, and that plaintiff at the time of said transfer had notice of the matters so alleged.

On the 2d day of September, 1879, Foster recovered a judgment in said action against Myers and Case for $440 damages and costs, and procured a decree perpetuating the injunction and declaring the judgment to be a special lien upon the building in controversy.

The defendants thereupon, upon the 9th day of September, 1879, filed a supplemental answer, setting up the recovery of this judgment by Foster, and alleging that the lien thereof is paramount to plaintiff’s mortgage as against the building, and that by reason thereof the consideration of said notes and mortgage' has wholly failed.

On the 6th day of January, 1880, Foster filed his petition of intervention, alleging his purchase of lot sixteen at tax sale, Ms acquisition of the treasurer’s deed therefor, the sale of said building by J. M. Phillips to defendant Myers for the alleged purpose of defrauding intervenor and evading the redemption of said property from said tax sale, the execution of the notes and mortgage in controversy as the purchase price of said building, the removal of said building to lot fifteen, the injunction proceeding, judgment and decree in favor of intervenor against Myers and Case; that plaintiff had knowledge before and at the time of the transfer of said notes and mortgage to him that intervener held said tax certificate; that said notes and mortgage were so transferred for the purpose of further injuring and defrauding intervenor, and that plaintiff at the time had knowledge that J. M. Phillips had sold said building to defendant Myers to avoid redeeming said property from tax sale, and also had knowledge that said notes and mortgage were given for the purchase price, and praying that his rights arid lien on the building now situated on lot number fifteen in block number eighteen, and also the lien of the judgment of petitioner against said lot number fifteen, be declared and adjudged to be senior and paramount to the lien of plaintiff’s mortgage.

The court rendered judgment against Myers and foreclosed the mortgage, but adjudged the intervenor’s lien on said building under and by virtue of said judgment and decree to be senior and paramount to plaintiff’s lien thereon under and by virtue of the mortgage.

The defendant Myers does not appeal from the judgment against him. The question involved is solely between the plaintiff and the intervenor, and relates to the priority of liens against the building in controversy. It cannot be questioned that Poster in virtue of his treasurer’s certificate acquired a lien upon the lot and the buildings thereon. It is clear also, that for the removal of the building, depreciating the value of the property, he should have an adequate remedy. We need not determine whether he might have followed the building itself and procured a restoration of it to the lot from which it had been removed. If he possessed any such remedy he waived it by electing to treat the building as j>ermanently severed from lot sixteen, and attached to lot fifteen, and taking a personal judgment against Myers and Case for the amount of the injury, with an injunction against their further interference with the property. When Foster took this judgment, if not before, the original lien which he had against the building became divested, and a new lien attached 'as of the date of the judgment. This lien was junior to the lien of the mortgage under which the plaintiff claims the property, and it was not competent for the court to declare that the lieu of the judgment should have precedence.

II. It is claimed that the evidence shows that J. M. Phillips procured the notes and mortgage by fraud; that the plaintiff is not shown to be a bona fide purchaser for value, and that for that reason he should not be allowed precedence over the judgment rendered in favor of the intervenor. We need not inquire whether the notes and mortgage were originally obtained by fraud. They were assigned to the plaintiff before maturity. He gave therefor two bonds of the nominal value of about $600. No question as to their value seems' to have been raised in the court below. In the state of the record we must presume them to possess some value. The court erred in decreeing the lien of the intervenor to be superior to that of the plaintiff under his mortgage.

Reversed.  