
    W. M. JOINER v. A. A. G. PERKINS.
    SUPREME COURT,
    AUSTIN TERM, 1883.
    
      Attachment — PetilVn and Affidavit— Variance. — An attachment v ill be dissolved where the exact amount of the demand is not anide sufficiently certain from the averments of ills petition and the a Hi tin vif. A variance, in the petition and affidavit, as- to the amount due. is fatally defective.
    
      Vendo','s Lien. — Jurisdiction.—The fact that Jiotes for the purchase pries of land were executed to a third ¡«arty, instead of iotlio 01 V'inal vendor, or that subsequently these notes were tricen tip and oilier notes substituted in their stead, w»ald not affect, as between these parties, the. vendor’s lien for the. purchase money. Under tiiii'. state, of facts the disttiefc court, of the county where the land was situated was vested with jurisdiction.
    Appeal- from Lee county.
    IV. M. Joiner, administrator, sued A. G. G. Perkins on two promissory notes, which are set out in plaintiffs petition, but not, filed therewith nor made part thereof. Plaintiff claims-in his petition that said notes were executed by defendant December 8,1878, one for the sum oí 814(>.2(> with interest at.10 per cent, per annum from date thereof until paid, the other for Ó85.17 at legal rate of interest from date thereof until paid; that these two notes were given in .lieu of other notes, without stating how many notes or the amount of money said other notes called for j that these other notes were procured by Mrs. Catherine B. Mundine to, be executed by defendant',' A. G. G„. Bcrkms> ■ on the-12th day of March, A. D. 1874, to plaintiff, W. M„ Joiner, administrator, in satisfaction of a debt which Mss* Catherine B. Mundine owed to said Joiner; that these notes first given were a part of the purchase money for the ■tractmf land as described by plaintiff in his petition and sold to said Perkins by Mrs Catherine B. Mundine. In other words, Mrs. Catherine B. Mundine was vendor, defendant A. Gr. Gr. Perkins was vendee, and that plaintiff, W, M. Joiner, administrator, was payee of the notes, which were not set out or described in plaintiff’s petition., except ■.that they were given for a part of the purchase money as ■before stated; that it was distinctly and expressly .uuder■stood by plaintiff, defendant and the ^said Catherine B. Mundine, and fully agreed (by and between whom is not -stated) that the lien for the purchase money of said land then held by said Catherine B. Mundine should be retained by plaintiff as administrator as aforesaid; and that plaintiff should be subrogated t© all the rights of ,the said Catherine B. Mundiue as vendor of -said tract of land. Plaintiff then ■prays fer a foreclosure of a lien on said land, allowing de~ .fondant a credit of §50,-paid December .14, 1880; ,-says it will not pay his debt; asks for an attachment for §100. Affidavit-was made by him stating indebtedness at $257.40, for which said $257.40 the writ issued, the proper bond having boen given.
    Defendant made motion to quash attachment on the .grounds of variance between petition and affidavit, which was sustained by .the court.
    Then came the demurrer on .the following grounds :
    1. That plaintiff’s petition is insufficient „in law, because it appears therefrom that the amount sued for -is below the jurisdiction of -this court and within the jurisdiction of the county court; that the same does not state facts sufficient to constitute a cause of ac- . Hon.
    2. That the .petition on its face.docs not show for what amount the notes claimed .to have been executed on the 12th ,day of March, A. D. 1874, for the purchase money of the .land, described in .the petition, was given.
    3. That the petition shows upon its face that the notes therein sued upon were not given for the purchase money -of .tbcland..described in,the petitiou* Wherefore ,he ..asks the court to strike out the portion of the petition relating" to the vendor’s” lien.
    4. That the petition shows that no lien was- ever reserved in writing* but an attempt is made to add a verbal condition to a written contract, wherefore he asks the court to strike out all that part of plaintiff’s petition referring to* such a verbal understanding as ter the vendor’s lien.
    Then the plea of privilege to be sued in Colorado county' And general denial, which demurrer was sustained by the court and the cause dismissed.
   Opinion by

West, J.

We are of the opinion that the action of the court in sustaining the motion to quash the writ of attachment on the ground of variance, was correct.

The exact amount of the debt, too, for the securing of tvhich the writ of altachment was sought, appears not to be made sufficiency certain from the averments of the petition and the affidavit. (Brown v. Martin, 19 Tex., 343; Marshall v. Alley, 25 Tex., 342; Espey v. Heidenheimer, (Gal. T., 1883.)

The court was- in error, however, in dismissing the case,for want of jurisdiction. The constitution, (Art. 5, Sec. 86) and also the statutes, (Rev. Stat., Art. 1117) provides, that the district court shall have jurisdiction in all cases for the enforcement of liens on real estate.

In this case, the land described in the petition, on which it is sought to foreclose the vendor’s lien, is alleged to be in Lee county, and was purchased by appellee, of Mrs. Catharine B. Mundine, and Mrs. Mundine being then im debted to appellant as administrator of the estate of Win. Joiner, deceased, instead of taking all the note's payable to herself, or order, directed appellee to execute some of the notes to appellant as such administrator, in satisfaction of her debt to the estate of appellant’s intestate. This was done and afterwards appellee executed by way of renewal, to appellant as administrator, the notes now in suit, in lieu of the former notes that were unpaid. The fact that the first notes were executed to appellant, instead of Mrs. Mundillo, (the original vendor) or that subsequently these notes were taken up, and other notes substituted in their stead, Would not affect, as between these parties, the vendors lien for the purchase money; that always exists in such a case* in the absence of its waiver. It was clearly such a lien, as was contemplated by the constitution and laws, when jurisdiction was conferred on the district court as to the enforcement and foreclosure of liens, on real estate. (lie'v. Stat., Art. 1198, clause 11.)

Without any contract or agreement by operation of law, Ibis lien springs at once out of ihe contract of purchase, and exists and survives, until waived or extinguished by payment as between the original parties to the notes, wholly independent of aiiy agreement, verbal or written. Hence tae averment in the petition in this case, as to the existence of the vendors lien, though not as full as it should have been, was sufficient. (Flanagan v. Cushman, 48 Tex., 244; Rogers v. Blum, 56 Tex., 1; Briscoe v. Bronaugh, 1 Tex., 326; Hood v. Cordova, 17 Wallace, 1; White v. Downs, 40 Tex., 225.)

Nor, as between these parties is'the lien waived, lost or abandoned by the fact, that the origmal note for the purchase money, was by the direction of the'vendor, executed 'to a third person. Nor, is such a lien lost as between the parties by the fact that such third person afterwards surrenders to the vendee his original note (as in this ease) and takes others in their stead.

De Bruhl v. Moss., 54 Tex., 473; Gilliam v. Collins, 53 Tex., 202; Clements v. Lacy, 51 Tex., 150; Irwin v. Garner, 50 Tex., 448; Flanagan v. Cushman, 48 Tex., 241; Prince & Zuber v. Malone, Galveston Term, January 28, 1881. Opinion of Commissioners of Appeals, by Hon. A. S. Walker, overruling Malone v. Kauffman, 38 Tex., 154; Pincham v. Collard, 13 Tex., 335; Senter & Co. v. Lambeth, Austin Term, Sup. Ct., 1883. Glaze v. Watson, 55 Tex., 563.

In this case the allegations in the pleadings are sufficient to show that the vendors lien has not been waived or abandoned, and if, on the trial, this proves to be the fact the district court of Lee county has jurisdiction of the case notwithstanding the fact, that the residence of the appellee is in Colorado county.

The judgment is reversed.  