131 S.W. 446
LEVY 
v. 
PERSONS et al.
Court of Civil Appeals of Texas.
October 22, 1910.
Rehearing Denied November 5, 1910.
        Error from District Court, Freestone County; H. B. Daviss, Judge.
        Action of trespass to try title by Sam Levy against W. C. Persons and others. From the judgment, 
plaintiff brings error. Reversed and remanded.
        D. T. Garth, Jno. C. Miller, and Geo. Q. McGown, for plaintiff in error.
Page 447
        RAINEY, C. J.
        This is an action of trespass to try title, brought by plaintiff in error against the defendants in error 
to recover lot 2, in block 59, in the city of Teague, Freestone county. Graham, one of the defendants in 
error, disclaimed any interest in the lot, and judgment was entered in his favor, which left the controversy 
between Levy and Persons. On the trial of the issues between them, Persons recovered a judgment, and 
Levy brings the case here on writ of error.
        The facts in the case seem to be practically undisputed, which we will recite, in order to a clear 
understanding of the issues involved: In 1907 W. C. Persons deeded to one Hunter lots 1 and 2 in block 
59 (lot 2 being the one here in controversy), in consideration, as recited in the deed, of $300 in cash and 
two notes, each for $450 and interest, payable, respectively, in one and two years, and a lien was 
reserved to secure payment of said notes. In October, 1908, Casey, Swasy & Co. sued the said Hunter, 
causing an attachment to issue, which was levied on lot 2, and the attachment duly recorded, in 
November, 1908, and judgment was rendered in said suit for the amount of the claim and for the 
foreclosure of the attachment. An order of sale was issued, and on February 2, 1909, said lot No. 2 was 
sold under the same, and plaintiff in error bid in the same, and a deed was duly executed to him. On 
January 26, 1909, Hunter executed a deed to defendant in error, conveying said lot No. 2; said deed 
reciting the consideration to be the cancellation of the two purchase-money notes for $450 each above 
mentioned, said "Hunter being unable to pay the same otherwise." These recitations were the only 
evidence tending to show rescission of the sale of the lot by Persons to Hunter.
        Under the facts, W. C. Persons held the superior title to the lots, subject to the payment of the 
purchase-money notes recited in his deeds to Hunter; but it is the settled law of this state that a 
rescission of contract for the sale of land between the vendor and vendee will not affect the rights of a 
third party who acquires the equity of redemption before the rescission. Huffman v. Mulkey, 78 Tex. 556, 
14 S. W. 1029, 22 Am. St. Rep. 71; Bonner Mem. Home v. Bank, 122 S. W. 430. The levy of the writ of 
attachment on lot No. 2 issued in the case of Casey, Swasy & Co. v. Hunter, the judgment of foreclosure 
therein, and the sale thereunder vested in Levy the equity of redemption in the property held by Hunter, 
and the attempted rescission by Persons after the levy of said attachment did not affect the right of Levy 
to redeem the land; but the right to redeem did not authorize Levy to recover the title from Persons 
without tendering the amount of purchase money owing him, if any. In the case of McDonald v. Miller, 90 
Tex. 309, 39 S. W. 89, where the facts are somewhat similar, Chief Justice Gaines in a lucid opinion 
discusses the rights of parties, and his discussion is applicable to the facts of this case.
        While under the pleadings of this case, strictly an action of trespass to try title, the court could not 
have legally rendered any other judgment, still we are of the opinion that the evidence shows such 
equities that have not been adjudicated as that this judgment should be reversed. Levy, holding the 
equity of redemption as to lot 2, with appropriate pleadings, would be entitled to recover the title, upon 
tender of the purchase money owing for lot 2, which would be its proportion of the amount due on lots 1 
and 2.
        The judgment is therefore reversed, and the cause remanded; costs to be taxed against appellant.