1. Notice — Doctrine not Applicable. — Appellant and appellee exchanged lands, and the title to the tract conveyed to appellee failed by reason of a prior vendor's lien thereon, under which it was sold after the exchange. He sued appellant to recover back his own tract, and prayed, if this relief was denied, for judgment for its agreed value and the enforcement of a vendor's lien thereon for such value. Held, that the doctrine of notice arising from circumstances sufficient to have put appellee upon inquiry as to the prior outstanding lien had no application in this case, where appellant, who created that lien, was sued for breach of his covenant of warranty that the land was unincumbered.
2. Deed — Restriction of Word "Grant." — The implied force of the word "grant" as a warranty against a prior incumbrance by the grantor, is not taken away by the use of the words, "release and quitclaim" in the concluding clause of the deed, and the restriction of the warranty to claims through or under the grantor.
3. Vendor's Equitable Lien. — Where plaintiff's title to land received by him in exchange for other land has failed, and he sues defendant on his covenant of warranty for its agreed value, and asks the enforcement of a vendor's lien against the tract he had conveyed to defendant, no question as to the creation of such lien by verbal contract is involved; and the judgment of the lower court declaring and foreclosing a vendor's lien as prayed for, is affirmed.
STEPHENS, ASSOCIATE JUSTICE.
The objections taken by appellant to the conclusions of law and fact upon which judgment went against him can not be sustained. They are therefore approved and adopted as our conclusions.
The ninth conclusion, though not objected to, in order to better conform to the statement of facts, should read: That immediately after the exchange of deeds, appellant made known to appellee the existence of the vendor's lien on the land conveyed by the former to the latter, and promised him protection against it, upon the faith of which appellee took possession under his deed; and that when suit was brought to foreclose this lien, appellee notified appellant, who wrote appellee, requesting him to pay the debt, promising reimbursement, but he was unable to comply with the request.
The doctrine of notice arising from circumstances sufficient to provoke inquiry, as contended for in the first assignment of error, has no application in this case. The purchaser at the foreclosure sale could have invoked such a principle in a suit against appellee to recover the property so sold; but not appellant, who created the lien, when sued for a breach of his covenant that the property was unencumbered.
The contention of the second assignment, that the implied force of the word "grant" was taken away by the concluding clause of quitclaim, or special warranty, must also be denied. This clause reads, "and I bind myself, my heirs, executors, and administrators, to release and quitclaim unto the said John B. White against every person whomsoever lawfully claiming the same or any part thereof through or by me."
This probably restricted the covenant to encumbrances created by or through the grantor, and the cases relied on by appellant would seem to be authority to that extent, but, we think, no further, viz.: McIntyre v. De Long, 71 Tex. 86; Rhode v. Alley, 27 Tex. 442. Subsequent words in a deed should be very explicit to have the effect of withdrawing from the scope of the granting clause an encumbrance of the grantor's own creation.
The further contention, that the vendor's lien arises by operation of law, and can not be created by verbal contract, has no application here. The suit was not brought on the verbal stipulation of appellant, but on a broken covenant, and to recover land, or the value thereof, conveyed to appellant by appellee, for which nothing had been received in exchange.
The judgment for the value of the land as agreed upon in the exchange, with foreclosure of the vendor's lien, seems warranted by the case of White v. Street, 67 Tex. 177.
Judgment affirmed.
Affirmed.