
    POPE v. BEAUCHAMP et al.
    (No. 2647.)
    (Supreme Court of Texas.
    March 3, 1920.)
    1. Lis pendens <$=>4^-Bona pide purchaser OE NEGOTIABLE instruments is not charged WITH NOTICE OE SUIT PENDING AGAINST TRANSFEROR.
    The common-law rule that a purchaser pen-dente lite was bound by a judgment against his predecessor does not apply to the purchaser of a negotiable instrument, who acquires good title if he had no actual notice of the pending suit.
    2. Lis pendens <$==>24(3) — 'Vendor and purchaser <$=>261(2, 4) — Bona eide purchaser op negotiable purchase-money note pen-dente LITE ACQUIRES VALID RIGHT TO LIEN.
    The vendor’s lien securing a negotiable purchase-money note, like a mortgage, is incidental to the note and accompanies it in all transfers, and a bona fide purchase of the note discharges, not only the note, but also the lien, from equities against them in payee’s hands, so that a bona fide purchaser of the note pending a suit by a former owner of the land to recover the land on the ground of fraud acquires a lien valid against the land after its recovery by the former owner, despite the fact that lis pendens notice was filed in such suit under Bev. St. § 6837.
    3. Lis pendens <$=>4 — Lis pendens notice DOES NOT CHARGE PURCHASER OF NEGOTIABLE VENDOR’S LIEN NOTE.
    Bev. St. § 6837, requiring lis pendens notice to be filed for record before innocent purchasers are charged with notice of the suit, was intended to protect purchasers, and does not change the common-law rule that a bona fide purchaser of a negotiable note secured by vendor’s lien acquired good title to the note and to the lien.
    4. Bills and notes <$=>537(6) — Whether TRANSFEREE OF FRAUDULENT NOTE WAS INNOCENT PURCHASER IS A JURY QUESTION WHERE EVIDENCE IS NOT CONCLUSIVE THAT VALUE WAS PAID.
    Though the evidence showed purchase of a negotiable instrument originating in fraud before maturity and showed no notice by the purchaser of the fraud, it was a question for the jury whether she was a bona fide purchaser, where the evidence was not conclusive that she paid value.
    5. Appeal and error <$=>994(2) — Credibility OF WITNESSES IS A QUESTION FOR THE JURY AND NOT APPELLATE COURT.
    The jury determines the credibility of the witnesses, and they may disregard the testimony of an unimpeached and uncontradicted witness because of interest or bias shown by the witness or because the manner of testifying raises a doubt as to the truth, so that such evidence does not warrant a conclusion by appellate court contrary to the verdict.
    6. Vendor and purchaser <$=>284r — Instruction REGARDING FORECLOSURE OF LIEN SECURING SUBSEQUENT NOTE AGAINST ORIGINAL GRANTOR HELD ERRONEOUS.
    Where the only relief sought against the original grantor who recovered the land for the fraud of his grantee was foreclosure of the lien securing a note given to the original grantee by a subsequent grantee and transferred to plaintiff, an instruction that, if the notes given the original grantor secured on other land were void, there could be no recovery against that grantor, was manifestly erroneous.
    7. Trial <$=296(1) — Subsequent correct CHARGE DOES NOT CURE ERRONEOUS CHARGE INCONSISTENT WITH IT.
    Error in a charge denying right of recovery on finding of fact insufficient to bar recovery is not cured by subsequent portions of the charge authorizing recovery without requiring an opposite finding on those facts, since that merely made the different parts of the charge contradictory.
    Error to Court of Civil Appeals of Seventh Supreme Judicial District.
    On motion for rehearing. Original judgment set aside, and judgment of the trial court and of the Court of Civil Appeals (159 S. W. 867)
    reversed, and cause remanded for
    a new trial.
    For original opinion, see 206 S. W. 928.
    V. K. Wedgworth, of Ft. Worth, for plain, tiff in error.
    B. T. Wilkinson, of Mt. Vernon, and Ow-sley & Owsley, of Denton, for defendants in error.
   GBEENWOOD, J.

We have concluded, on a careful re-examination of this record, that there was error in our order affirming the judgment of the district court.

The recommendation of the Commission of Appeals on which our judgment was entered was based on the following conclusions: First, that the transferees of Beauchamp’s negotiable note, under Wright, were in substance mortgagees of the land; and, second, that Butherford’s compliance with section 1, c. 128, Act of 1905, p. 316, now article 6837 of the Bevised Statutes, prevented such transferees from acquiring any better fight than that of Wright with respect to the enforcement of a vendor’s lien against the land originally owned by Butherford, though one or more of such transferees acquired the note, before maturity, for value, and without actual notice of any infirmity in the note or lien. 206 S. W. 928.

There is no doubt that the conclusion is correct that the transferee of a vendor’s lien note becomes a mortgagee or incumbrancer of the land, but we do not think it follows that one who takes a transfer of a vendor’s lien note, in good faith, for value, and before the note’s maturity, may be charged with constructive notice of a vice in the vendor’s lien by means of section 1 of the act of 1905.

Prior to the enactment of the act, it was plainly the law in Texas that the doctrine, whereby a purchaser pendente lite was bound by a judgment against the party under whom he claimed, had no application to negotiable paper.

An emphatic announcement of the law is contained in that portion of the opinion in Board v. T. & P. Ry. Co., 46 Tex. 828, which reads:

“And there is not even one solitary exception to the universally recognized rule that negotiable instruments are not within the rule of lis pen-dens.”

Again in Gannon v. Bank, 83 Tex. 276, 18 S. W. 574, it is said:

“The only fact under the evidence that appellants rely upon as creating and charging ap-pellee with notice of such prior incumbrance is the pendency of the Butler suit. The note is negotiable in form. It is a recognized rule of law that negotiable instruments are not within the rule of lis pendens. The pendency of the Butler suit did not charge appellee with notice of any defense to the note.”

In 2 Pomeroy’s Equity Jurisprudence, § 36, the following statement is made:

“It is well settled that the doctrine of constructive notice from lis pendens does not embrace suits concerning negotiable instruments or moneys, so as to affect the title of a transferee for value and in 'good faith during the pendency of the action, even when the transfer was made in direct violation of an injunction, so that the indorser or assignor would be punishable for the contempt.”

So, ft is held that the way to effectively prevent the circulation of negotiable instruments pendente lite is for the court to require same to be actually delivered into the custody of the court. Kieffer v. Ehler, 18 Pa. 391.

The Supreme Court of Ohio tersely expressed the fundamental reason for refusing to apply the doctrine of lis pendens to negotiable paper, in saying:

“The doctrine of lis pendens is founded on no principle of natural equity, but has its foundation solely in considerations of public policy; and the policy which excepts negotiable paper from its operation is, at least, as wise, as important, and as well established as is that on which the rule itself has its foundation.” Stone v. Elliott, 11 Ohio St. 260.

We are further of the opinion that the protection which the law gives the bona fide holder of negotiable paper extends to a lien which is a mere incident of the debt evidenced by the paper, in the absence of actual or constructive notice of some defect in the lien. The bona nde purchaser has the same right to rely on an incidental and inseparable lien as on any other feature of s negotiable note. Hamblen v. Folts, 70 Tex. 135, 7 S. W. 834. We therefore regard as thoroughly sound the declaration of the Supreme Court of Missouri, in Mayes v. Robinson, 93 Mo. 114, 5 S. W. 611, that — -

“If the defendant took the note discharged of any equities to which it was subject in the hands of the payee, the deed of trust passed to him discharged of such equities to the same extent. Logan v. Smith, 62 Mo. 455. The deed of trust, being incident to the note, partook of the negotiability of its principal Hagerman v. Sutton, 91 Mo. 519, 4 S. W. 73, and authorities cited. If the defendant was a bona fide holder of the note, for value, before maturity, without notice, he was in equal measure such bona fide bolder of the deed of trust.”

In rejecting the contention that defenses should be available against a mortgage lien which were not available against the debt secured by such lien, the Supreme Court of the United States declared that the following conclusions were sustained by reason, principle, and the greatest weight of authority:

“The assignment of a note underdue raises the presumption of the want of notice, and this presumption stands until it is overcome by sufficient proof. The case is a different one from what it would be if the mortgage stood alone, or the .note was nonnegotiable, or bad been assigned after maturity. The question presented for our determination is whether an assignee, under the circumstances of this case, takes the mortgage as be takes the note, free from the objections to which it was liable in the hands of the mortgagee. We hold the affirmative. The contract as regards the note was that the maker should pay it at maturity to any bona fide indorsee, without reference to any defenses to which it might have been liable in the hands of the payee. The mortgage was conditioned to secure the fulfillment of that contract. To let in such a defense against such a holder would be .clear departure from the agreement of the mortgagor and mortgagee, to which the assignee subsequently, in good' faith, became a party. If the mortgagor desired to reserve such an advantage, he should have given a nonnegotiable instrument. If one of two innocent persons must suffer by a deceit, it is more consonant to reason that he who ‘puts trust and confidence in the deceiver should be a loser rather than a stranger.’
“The mortgaged premises are pledged as security for the debt. In proportion as a remedy is denied . the contract is violated, and the rights of the • assignee are set at naught. In other words, the mortgage ceases to be security for a part or the whole of the debt, its express provisions to the contrary notwithstanding.
“The note and mortgage are inseparable; the former as essential, the latter as an incident * * * An assignment of the latter is alone a nullity. * * *
“AH the authorities agree that the debt is the principal thing and the mortgage an accessory. Equity puts the principal and accessory upon a footing of equality, and gives to the assignee of the evidence of the debt the same rights in regard to both. There is no departure from any principle of law or equity in reaching this conclusion. There is no analogy between this case and one where a chose in action standing alone is songht to be enforced. The fallacy which lies in overlooking this distinction has misled many able minds, and is the source of all the confusion that exists. The mortgage can have no separate existence. When the note is paid, the mortgage expires. It cannot survive for a moment the debt which the note represents. This dependent and incidental relation is the controlling consideration, and takes the case out of the rule applied to choses in action, where no such relation or dependence exists. * * *
“The principle is distinctly recognized that the measure of liability upon the instrument secured is the measure of the liability chargeable upon the security.”

Carpenter v. Longan, 16 Wall, 271 to 277 (21 L. Ed. 313).

In line with the reasoning of the Supreme Court of the United States is the opinion of this court in the case of Perkins v. Sterne, 23 Tex. 563, 76 Am. Dec. 72, wherein it is said:

“It is * * * well settled that the assignment of the debt, even by parol, draws after it the mortgage as appurtenant to the debt. 4 Kent, 161, 162. Even in the case of a note made payable to A., or bearer, and transferable by delivery, without indorsement, any holder of such note could avail himself of. the security afforded by a mortgage executed to secure its payment, because the mortgage, as an incident, would follow the note into the hands of every holder. So, on the other hand, ‘an assignment of the interest of the mortgagee in the land, without an assignment of the debt, is considered to be without meaning or use.’ 4 Kent. And the reason is that the principal thing always draws to it that which is accessory or incidental: so that the principal thing cannot take one direction, and that which is incident to it, another direction.”

Bigelow on Bills, Notes and Checks, on page 106, recognizes the correctness of these decisions in saying:

“The executed contract of mortgage, assuring an instrument of the law merchant, stands upon a footing of its own. It is an incident' of the instrument assured; and if that is negotiable and is transferred according to the law merchant, the mortgage passes with it, ipso facto, without assignment in words, and, by the weight of authority, with the properties of the principal instrument itself. Equities therefore cut off by negotiation of the latter to a holder in due course are cut off as well in respect of the mortgage.”

We find nothing in the act of 1905 to evidence an intent to enlarge the scope of lis pendens, so as to thereby affect the bona fide purchaser of negotiable paper. The act can be given no other effect than as preventing the operation of lis pendens in any suit or action of the character mentioned where a transfer or incumbrance is executed by a party to the suit to a third party for a valuable consideration, without notice, unless the notice prescribed by article 6S37 has been filed. By its terms the act in no wise purports to extend the effect of notice of any pending suit or action, but does impose a limitation on the prevailing common-law doctrine.

However, there can be no doubt of the legislative purpose to restrict and not to extend the binding force of judgments on those acquiring rights pendente lite in good faith and for value and without actual notice, in the light of the history of statutes of the class to which our statute belongs. For, similar statutes in. both England and many American states have been uniformly enacted to ameliorate the supposed harshness of the doctrine of lis pendens as applied to purchasers in good faith, for value, and without knowledge. 2 Pomeroy’s Equity Jurisprudence, §§ 639, 640; Pennington v. Martin, 146 Ind. 635, 45 N. E. 1112; Wood v. Price, 79 N. J. Law, 620, 81 Atl. 983, 38 L. R.. A. (N. S.) 773, Ann. Cas. 1913A, 1210. Such a statute, wholly intended to benefit the bona fide purchaser, cannot be held to operate to his sore detriment, by making available against him defenses which could not be asserted without the aid of the statute.

Nothing we have said prevents an incum-brancer from being chargeable with matters, of which the law does require him to take notice. We simply hold that independent of the act of 1906 the rule of lis pendens would not affect the right to the debt or lien of the bona fide purchaser of a negotiable note, and further that this act cannot properly be so construed as to affect the right of such a purchaser. Save for the “lis pendens record,” there was nothing in the public records to indicate any vice in Beauchamp’s note or in the incidental vendor’s lien.

Having determined that a bona fide purchaser of Beauchamp’s note would have the right to enforce the vendor’s lien, it becomes necessary for us to dispose of the contentions of the parties relative to alleged errors of the trial court and of the Court of Civil Appeals with respect to the submission and determination of the issues arising under the law applicable to a bona fide purchaser.

The writ of error was granted to plaintiff in error because the Court of Civil Appeals, after making findings indicating that Mrs. Stephens paid value for the note, held that she should not be treated as a bona fide purchaser, because, there being evidence that the note originated in fraud, she introduced no testimony to show that she acquired the note in good faith. The plaintiff in error insists that he was entitled to judgment for the full amount of Beauchamp’s note, as the assignee of Mrs. Stephens, because it conclusively appears that she paid value for the note, before maturity, and because the record contains no evidence to carry notice to her of the fraud by which the note was acquired.

Mrs. Stephens does appear to have acquired the note before maturity, and the record is barren of facts to charge her with notice of the fraud perpetrated on Rutherford, and, if the record did conclusively show that she paid value, the contention of plaintiff in error would be sustained, under the rule established in Prouty v. Masquiz, 94 Tex. 93, 58 S. W. 721, 996, that where the holder of a promissory note, procured by fraud, establishes that a previous assignee paid value for the note, before maturity, and there is nothing tending to show bad faith in the assignment, then the burden is upon one seeking to defeat the enforcement of the note, for fraud in its origin, to show notice of the fraud.

However, we find that under the evidence, which we have carefully considered and deem it unnecessary to discuss, it was a question of fact for the jury as to whether Mrs. Stephens paid value for the note. Hence we cannot say that the jury were not authorized to find that Mrs. Stephens was not an innocent purchaser.

We also granted a writ of error on the application of defendant in error Rutherford, who complains that the evidence did not warrant the conclusion of the Court of Civil Appeals that the uncontradicted evidence showed that plaintiff in error was a hona fide holder of Beauchamp’s note and as such entitled to recover the amount loaned thereon, with interest.

Bearing in mind the rule dearly enunciated by this court, speaking through Judge Brown, in the case of Ry. Co. v. Runnels, 92 Tex. 307, 47 S. W. 972, that “it is the province of the jury to pass upon the credibility of the witnesses, and they may disregard the testimony of a witness who has neither been impeached nor contradicted, if they believe his statements to be untrue from his manner of testifying, prejudice exhibited towards the opposite party, or his interest in the result of the litigation, or other things indicating that the evidence is not reliable,” we have concluded that it was a question of fact, for the jury to determine, as to whether plaintiff in error was a bona fide holder of the note. See, also, Pridgen v. Walker, 40 Tex. 136; Crosby v. Church, 99 S. W. 587; Burleson v. Tinnin, 100 S. W. 351; Bank v. Howard, 174 S. W. 720.

The above conclusions would lead to an affirmance of the judgment of the district court, following the practice indicated in the case of Beck v. Texas Co., 105 Tex. 303, 148 S. W. 295, under the jury’s findings in favor of defendant in error Rutherford, on the issues submitted to them as to the status of Mrs. Stephens and of plaintiff in error as innocent purchasers, were it not for the fact that the charge of the trial court presents harmful error against plaintiff in error, of which proper complaint has been made.

Notwithstanding the only relief sought by plaintiff in error against defendant in error Rutherford was a foreclosure of the vendor’s lien, the trial court charged the jury that no foreclosure could he had if the jury found that there was no valid lien on the land in El Paso county to secure the two notes for $5,980 each, which were given Rutherford for the conveyance of his land, and if the jury found that said two notes were fraudulent and void. This charge is manifestly erroneous. The subsequent portions of the charge authorizing a finding for plaintiff in error, if he or Mrs. Stephens was found to be an innocent purchaser, did not correct the above error. They simply made the different parts of the charge contradictory. M., K. & T. Ry. Co. v. Rodgers, 89 Tex. 680, 36 S. W. 243.

It is ordered that the judgment heretofore entered herein by this court be set aside, and that the judgments of the district court and of the Court of Civil Appeals be reversed, and that this cause be remanded to the district court for a new trial. 
      <$=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     