
    R. R. Ruff et al. v. Charles Lind.
    No. 2795.
    Vendor and Vendee—Removing Cloud from Title.—Twenty-eight years after a deed was made which retained an express lien for unpaid purchase money, the vendor, unable to learn the residence of the purchaser, or whether he was living, the notes being still unpaid, brought suit to remove cloud from title. The evidence showed that the notes were never paid. Held, that the plaintiff, being in possession, was entitled to a judgment canceling the deed and removing the cloud cast by it on his title.
    Appeal from Jefferson. Tried below before Hon. W. H. Ford.
    The opinion states the case.
    
      James H. Rachford, for appellants.
    1. A deed reserving a lien for the purchase money in a contract for the sale of land makes the title depend upon the payment of the purchase money, and the superior title remains in the vendor. Roosevelt v. Davis, 49 Texas, 463; Pitschki v. Anderson, 49 Texas, 1; Flanagan v. Cushman, 48 Texas, 241; Webster v. Mann, 52 Texas, 416; McAlpin v. Burnett, 19 Texas, 497; Baker v. Compton, 52 Texas, 252; Baker v. Ramey, 27 Texas, 53; Ball v. Hill, 48 Texas, 634.
    2. Where a vendor executes a deed to his vendee, but retains a vendor’s lein upon the land to secure the payment of the unpaid purchase money, upon nonpayment he may re-enter upon the land and bring suit to set aside his deed as a cloud upon his title. Hamblen v. Folts, 70 Texas, 132; Tom v. Wollhoefer, 61 Texas, 277; Masterson v. Cohen, 46 Texas, 520.
    No brief for appellee.
   HENRY, Associate Justice.

Appellants, claiming to have the title of one Otto Ruff, brought this suit by publication to remove cloud from their title to two lots lying in the town of Beaumont. The cause was tried without a jury, and judgment was rendered in favor of the defendant.

Ho conclusions of law or fact appear, and in their absence the only assignment of error that we can consider reads: “The court erred in holding that plaintiffs were not entitled to the remedy prayed for.”

The statement of facts shows, without any conflicting testimony, that on the 19th day of Februray, 1861, Otto Ruff conveyed the land in controversy to Charles Lind. The deed states the consideration to be “ the sum of forty dollars in hand paid, and note of hand, at three months from date, for the sum of twenty dollars, and also note of hand for twenty dollars, due six months from date, by Charles Lind.” The deed expressly retains vendor’s lien until payment of the notes.

It was proved that Lind left Texas “about” the year 1861, and was never afterwards heard from; that shortly after the war between the States the notes were placed in the hands of an attorney at Beaumont for collection; that the attorney made diligent search for Lind, but was unable to find him; that he kept the notes in his hands until 1878 or 1879, when he returned them uncollected to the agent of the owners.

The evidence shows that by the advice of an attorney plaintiffs had taken possession of the lots and had possession of them when they instituted this suit.

It was proved that the agent of the owners of the notes, to whom they were returned uncollected in 1878 or 3 879, moved away from Beaumont about that time. The notes were not produced at the trial.

The court appointed an attorney to represent the absent defendant, who pleaded only a general denial.

We think the evidence allows of but one conclusion, and that is that the notes were never paid.

The vendor never having divested himself of the title to the land, and the notes remaining unpaid, under the circumstances of this case and under the issues made by the pleadings plaintiffs were entitled to a judgment canceling the deed to Lind and removing the cloud cast by it upon their title.

The judgment of the court below will be reversed and judgment rendered by this court in favor of appellants.

Reversed and rendered.

Delivered January 31, 1890.  