Should the present judgment of this court prevail, it seems to me that the shape of the law in this controversy — like that of the East-Tennessee mountain lad's homemade breeches — will be such that you cannot tell whether the litigants are going to town or coming home; in other words, that this court in this case, with no more warrant than then existed, under either the pleadings or proof, has now permitted the appellees O'Connors to recover the same 160 acres as against appellant Brooks by in effect "asserting a superior title to the land by virtue of being the holders of the original and outstanding lien against it" — the very thing it unanimously determined before in cause No. 8743, 287 S.W. at page 289, they could not do.
In No. 8743, after originally stating the controlling Issue involved to be "whether or not the plaintiffs below, in bringing their *Page 189 suit, were at the time in position as against the appealing defendants to assert a superior title to the land by virtue of being the holders of the original and outstanding vendor's lien against it," this court thus in substance on rehearing determined that sole question adversely to them in so far as concerned appellant Brooks:
"After mature reconsideration, * * * we have become convinced of error in the original disposition through our failure to sustain appellant Brooks' plea of estoppel. * * *
"But this defense of estoppel was properly interposed below both by pleading and proof, was broader than this, and amounted, in substance, to the claim that the appellees, by accepting Brooks' money on September 19, 1921, and thereafter, in furtherance of the understanding then and thereby reached, on 21st day of September, 1921, delivering and assigning to him the $4,500 note, and the lien securing it, in the circumstances shown to have attended the transaction as a whole, estopped themselves from thereafter asserting as against him any right to recover the land as an incident to ownership of the original vendor's lien indebtedness; in other words, that they thereby in effect agreed with him that henceforth he and they would mutually sustain toward the lands the strict relation of lienholders or mortgagees only, with distinct specification that their indebtedness, so shorn of what might otherwise carry with it the rescission and recovery of the title right, would be first in time and his second.
"That position is now sustained. * * *
"From the uncontroverted proof it now seems to us to conclusively appear that the language and conduct of the appellees with reference to the relative status of the two liens they held led the appellant to buy the second one in reliance upon an understanding that it would he subordinate to theirs only in respect to priority of payment, and that, knowing then that he so acted, they should not now be permitted to disappoint his expectation. * * *
"This judgment shall in nowise affect the O'Connors' right as against Brooks to foreclose their prior lien."
The Supreme Court refused a writ of error in that cause, thereby approving the quoted holding. That final action forever took from the appellees here any right or title of any sort in this 160 acres as against this appellant, and reduced them for all purposes to the level plain of mere lienholders along with him, save only that they should be permitted to eat as such at the first table, while he must wait for the second. It is therefore wholly immaterial as to what title they may have held to the land as against others — as affected him they neither then were, nor, so long as such decree remained in force, could thereafter become, other than prior lienholders only, the full rights of a holder of the second lien remaining unimpaired in the appellant.
In these circumstances, just how this court may now, by its present majority ipse dixit concerning the full court's last-quoted former determination that it "did not mean, and cannot be reasonably construed as meaning, to limit the right of plaintiffs to such proceedings (foreclosure) in a strictly technical sense," denude that decision of any of its force, does not readily occur, since it has long since become res adjudicata of that question, hence the law of the present case upon it; neither did that opinion leave the litigants here in the same position as if Brooks had not been made a party to that cause, for the reason that it affirmatively decreed the estoppel against the appellees in his favor, or, to repeat its exact language, "they thereby in effect agreed with him that henceforth he and they would mutually sustain toward the lands the strict relation of lienholders or mortgagees only," etc.
As the majority opinion recites, the former judgment also divested all title to the land out of the Bootys and invested it in the O'Connors.
So that, with the Bootys finally eliminated and the relative status toward this 160 acres of the O'Connors and Brooks thus authoritatively fixed as being only that of first and second lienholders, respectively, the O'Connors sued Brooks in this proceeding upon the theory that his so-established secondary lien — he still claiming under it, and it never having been released of record — constituted a cloud upon their title to the land which they were entitled to have removed and their own title decreed and quieted in either of two contingencies: (1) Should he fail by his answer herein to show or allege that he then had any legal or equitable right in or lien upon the land; (2) should it be determined on final trial upon the facts that he really had no such right or lien. There was a further contingent prayer for a foreclosure of their own declared-upon first lien, in event it developed that he did have a lien for any amount justly due him; but as the judgment disposed of the cause on the first theory, it need not be further referred to.
Their petition will be searched in vain for any averments, either that Brooks in fact had no right in or lien upon the land, or that any such equities existed in their favor as that the value of the security was not sufficient to satisfy on sale thereof both classes of liens; on the contrary, they grounded their action solely upon the view that they could extinguish the appellant's claimed lien as a cloud upon their title to the land, which they charged consisted of a superior or paramount prior lien thereon, either in case he *Page 190 failed on their invitation to come in and show just what amount was still due him thereon, or if the facts developed that nothing was, their allegations toward that objective simply amounting, on the whole, (1) to setting up all the facts conclusively showing, if not indeed expressly admitting, that he did have the subordinate lien he asserted, (2) to stating that they did not know whether any part of the $4,500 note it secured had ever been paid or not, and (3) to asserting that his unreleased lien constituted a cloud upon their title.
As the excerpts quoted from its judgment in the majority opinion show, the trial court adopted this theory of the appellees as to their rights, and, upon appellant's mere refusal to take up the gage they so laid down for him and answer their averments on the facts by pleading or proof, without receiving any evidence either as to whether or not his lien was still outstanding unimpaired, or as to the existence or not of any fact that might otherwise render its recognition inequitable as affected appellees, not only adjudged the latter to be the legal owners of the land and as such entitled to have their title to it freed from appellant's lien as a cloud thereon, but further decreed that his deed of trust evidencing it be canceled and held for naught; this in spite of the admitted fact that both his $4,500 note and this lien securing it had, in consideration of full value therefor paid by him, emanated from themselves.
In my opinion, this judgment was without either pleading or evidence to support it, and therefore cannot properly stand. In the first place, the facts averred did not comprehend a cloud upon the only kind of title the appellees alleged they had as against him consequently appellant's general demurrer to their petition should have been sustained. A cloud on title has been acceptably defined to be: "An outstanding claim or incumbrance which, if valid, would affect or impair the title of the owner of a particular estate, and which apparently and on its face has that effect, but which can be shown by extrinsic proof to be invalid or inapplicable to the estate in question." Black's Dictionary of Law, p. 214; 32 Cyc. p. 1314 et seq., and authorities cited.
As before shown, none of these essentials were here charged. The particular estate they said they owned as against appellant was only a prior lien to his upon the same land, and it was neither alleged that his asserted subordinate one, if valid, would in any way impair theirs, nor that on its face it even had that semblance, nor that it could be shown by extrinsic evidence to be invalid or inapplicable as against their own — rather was the contrary explicitly pleaded. They not only made parts of their pleading the deed of trust appellant held and the assignment from themselves to him of the lien therein carried, each of which instruments recited upon the face thereof that his lien existed but was in every way secondary and inferior to theirs, but also a full copy of this court's former opinion in No. 8743, which recited all these facts, and evidenced as well this court's holding that they had nothing but a prior lien as against him and in consequence no other right than to foreclose it in a court of competent jurisdiction.
Obviously, therefore, the mere contemporaneous coexistence with their own superior one of a second-class lien in him would not in law cast a cloud upon the only right in or title to the land they thus had. 7 Cyc. 255, 256, and authorities cited in notes 34 to 47, inclusive; Day Land Cattle Co. v. State, 68 Tex. 536, 537, 4 S.W. 865: Morton v. Morris, 27 Tex. Civ. App. 266, 66 S.W. 94.
If the pleadings, however, could be construed as sufficiently averring the existence of a cloud, the supporting evidence, under the authorities last cited, was plainly lacking. For instance, it was agreed between the parties in open court upon the trial — to be considered, however, only as bearing upon appellant's plea to the jurisdiction of the court — that he was then the owner of the $4,500 although it had been presented to and allowed as a claim against the estate of E. F. Booty by the probate court of Jackson county within a year after the granting of administration thereon; further, that appellant had just testified that he neither had nor asserted any other interest in or claim against the 160 acres involved than that of a junior lienholder under the $4,500 note and supporting lien he had so acquired from the appellees, which lien he had always admitted to be wholly subordinate and secondary to their first lien on the land, and that there had never been any issue between him and them as to the admitted priority of their lien over his.
The appellees themselves, however, for the purpose of showing the claimed cloud on this title, as well as for all others, offered in evidence as their fifth and sixth written instruments the $4,500 deed of trust carrying appellant's lien and the transfer of that lien from O'Connor, executor, to him, both of which documents on the face thereof recited that Brooks owned the note and lien and that it was secondary, subordinate, and inferior to the prior and first lien retained on the land by the O'Connors.
But as previously stated, they neither controverted the matters of fact appearing in the above-given and so restricted agreement, nor did they go further and prove any fact either tending to impair the then outstanding force of appellant's debt and lien or giving rise to a countervailing equity against it in themselves; in short, they did nothing further, except to show that they then held the first lien on the land, and then relied upon *Page 191 that and the refusal of appellant to further plead for the judgment the trial court accorded them.
It seems at least novel to me that a litigant can thus be penalized for his refusal to aid his antagonist in making a case against him, and for preferring to stand at arm's length upon his own rights. The appellees were not in the position of interpleaders — that is, of those holding but themselves owning no interest in property that is adversely claimed by others, whom they might compel to come in and litigate the title to between themselves, thereby relieving the holders of liability — but they sued and recovered against appellant alone as the holder of a claim that improperly clouded the title of their own: as the proponents of that declared upon cause of action, it was not only clearly incumbent on them to sufficiently allege but likewise prove it as well; they failed upon both features. 32 Cyc. p. 1369 (111), and authorities cited in footnotes, 7, 8, and 9.
Under the particular facts involved, the title to this land not only having long since passed out of the Bootys, but the legal status toward it of the parties here having been definitely fixed by the former judgment of this court, I have agreed with my associates that the trial court had jurisdiction of the controversy, at any rate in so far as it was an action to foreclose the appellees' lien; the same holding as to jurisdiction was also made by this court in a third suit between these parties, Booty et al. v. O'Connor et al. (No. 9175) 13 S.W.2d 220, by opinion filed here on November 22, 1928.
Under the view here taken, the trial court's judgment should be reversed and the cause remanded; this protest against its affirmance is earnestly entered.