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$100 due plaintiff as attorney's fees. I find that, as a matter of fact, the plaintiff, W. 0. Diffie, never paid the notes given by Long to Bailey for the land, and assumed by him, nor any part thereof, and that his deed was not filed for record until the 19th day of July, 1902.” This finding is not assailed by plaintiff in error, and it must be assumed by us that it is supported by the evidence. It implies that plaintiff in error's deed from Long and wife expressed as a part of the consideration therefor the assumption of the payment of two promissory notes described in the deed from Bailey and others to J. Long, and expressly reserved a lien on the land in controversy to secure their payment, and that said notes were then owned by J. B. Whitfield. This being true, the superior title to the land remained in Long and wife until the purchase money was paid. Peters v. Clements, 46 Tex. 122; Roosevelt v. Davis, 19 Tex. 472; Baker v. Compton, 52 Tex. 261; Hamblen v. Folts, 70 Tex. 135, 7 S. W. 834; Minter v. Burnett, 90 Tex. 249, 38 S. W. 350; Carey v. Starr, 03 Tex. 515, 56 S. W. 324.

The court's fourth finding of fact is as follows: "(4) I find that on the 28th day of August, 1900, J. Long and wife, M. J. Long, deeded the land in question to J. B. Whitfield, and that the consideration was the surrender and cancellation of the two notes given by Long and wife to J. W. Bailey, and described in the deed from Bailey et al. to Long, which were a vendor's lien on the land in question, and paid the said Long $35, and that the said deed was filed for record August 28, 1900." And its second additional finding of fact is as follows: (2) The amount of the notes given by J. Long to J. W. Bailey as a part of the purchase money for said land was $50 and $160, respectively. The said notes were dated September 21, 1895, and were due December, 1895, and No vember, 1896, and bore interest at the rate of ten per cent. per annum from date." Plaintiff in error not having complied with his promise and obligation to pay the Bailey notes, which were due at the time he made the promise for nearly two years, Long and wife, his vendors, bad the legal right to convey the land to Whitfield. Morrison v. Barry, 10 Tex. Civ. App. 25, 30 S. W. 376; Efron v. Burgower (Tex. Civ. App.) 57 S. W. 306. And Whitfield thus acquired all the legal rights his vendors had; and, holding the purchase-money notes, which plaintiff in error had assumed the payment of, he had the same right to have them paid as his vendors, before the superior right to the land could vest in plaintiff in error. Crafts v. Daugherty, 69 Tex. 480, fi S. W. 850; Harris v. Catlin, 53 Tex. 8; Jackson v. Palmer, 52 Tex. 431; Masterson v. Cohen, 46 Tex. 520; Hale v. Baker, 60 Tex. 217.

The court's fifth finding of fact is as follows: "(5) I find that on the 31st day of December, 1900, J. B. Whitfield and wife deeded the land in question to M. C. Hearn

for himself and his codefendant W. M. Thompson, and that the consideration paid therefor was $300 cash paid at the time and the execution of two notes, payable to J. B. Whitfield or order, for $100 each, both of which have been paid, and that the amount was the full value of the land at that time, and that the deed from Whitfield and wife to Hearn was filed for record January 4, 1901."

The conveyance by Whitfield to defendants in error vested in them all the rights acquired by the former from Long and wife by their deed to him, and they are now in possession of the land in controversy under said deed.

Plaintiff in error's fourth assignment of error assails the conclusion of law of the court below to the effect that defendants in

were entitled to judgment upon the ground that plaintiff in error had failed to comply with his contract as to the purchase of said land, and pay the amounts assumed by him, which constituted a lien upon the land in controversy. We do not agree with this contention of the plaintiff in error. stated in the case of Crafts v. Daugherty, supra, the facts of which are very similar to those found by the court in this case, the plaintiff in error was not entitled to a judgment for the land, nor to disturb the possession which defendants in error took under their deed, without payment of the amounts he had assumed, which constituted a lien upon the land.

The view we have taken of the case, and upon which same is disposed of, renders it unnecessary for us to consider the other assignments of error presented in plaintiff in error's brief.

The judgment of the court below is affirmed.

As

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BRADFORD y. WESTBROOK, Tax Col

lector. (Court of Civil Appeals of Texas. June 3,

1905.) 1. BONDS TAXES_PAYMENT-COLLECTIONINJUNCTION-NECESSARY PARTIES.

In a suit by a taxpayer to enjoin the collection of a levied to pay town bonds, the town and the holder of the bonds are necessary parties.

[Ed. Note.--For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, $ 2169.) 2. SAME-VALIDITY-DE FACTO CORPORATION.

Where a town was a de facto corporation at the time it issued certain bonds, and after reincorporation of the town the succeeding de jure corporation assumed the payment thereof as authorized by statute, the bonds became valid obligations of the succeeding corporation,

[Ed. Note.—For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, $8 1948 1950.]

Appeal from District Court, Nolan County; Jos. L. Shepherd, Judge.

Suit by J. A. J. Bradford against E. Westbrook, tax collector of Sweetwater. From a

decree in favor of defendant, plaintiff ap- blow the whistle at the place where the accipeals. Affirmed.

dent occurred was properly excluded.

[Ed. Note.-For cases in point, see vol. 37, J. F. Eidson and Beall & Beall, for appel

Cent. Dig. Railroads, $S 913, 1125.] lant. Ragland & Crane, for appellee.

Appeal from District Court, Fannin CounSTEPHENS, J. This suit was brought to

ty; Ben H. Denton, Judge. enjoin the collection of a tax levied in the

Action by T. C. Frank against the Texas year 1902 by the town of Sweetwater for the

& Pacific Railway Company. From a judgpayment of bonds issued in the year 1898 by

ment for plaintiff, defendant appeals. Rethe town of Sweetwater when it was a de

versed. facto corporation only. This acting corpora- T. J. Freeman and Head, Dillard & Head, tion was dissolved by decree of court at the for appellant. M. M. McMahon and Thurinstance of the state, in a quo warranto pro- mond & Steger, for appellee. ceeding, in the following year. The people of the same territory reincorporated in 1902, and assumed to pay the bonds, levying a tax

KEY, J. This is a personal injury suit, for that purpose.

and from a judgment in favor of the plainThe petition for injunction, even with the

tiff, the defendant prosecutes this appeal. aid of the supplemental petition, did not en

The plaintiff alleged in his petition that title appellant to any relief whatever. In the

he was confined to his bed 10 days, at a loss first place, neither the town of Sweetwater,

of $2.50 per day. That was the only averpor the holder of the bonds sought to be

ment in reference to loss of time. The plaininvalidated, was made a party to the suit;

tiff's testimony tends to show that he lost and, in the second place, the facts stated ut

15 whole days of time, and parts of an unterly failed to impeach the validity of the

certain number of other days, on account of bonds. Being issued by a de facto corpora.

the injuries complained of, all of which time tion in conformity with the law authorizing

he testified was worth $2.50 per day. As to a de jure corporation to issue bonds, and be.

the measure of damages, the court instructed ing assumed by the succeeding de jure cor

the jury as follows: “If you find a verdict poration in conformity with the statute au

for plaintiff, you may, in estimating his thorizing such assumption, the bonds were

damages, consider any injury to his buggy, valid obligations, notwithstanding the town

any loss of time by him, any reasonable exmay have bad less than 1,000 inhabitants, pense for physician, any reasonable expense as alleged, during the life of the de facto for medicine, and any bodily and mental corporation. The cases sustaining this view

pain suffered by plaintiff which the evidence are both numerous and familiar.

may show is the direct result to plaintiff of The judgment sustaining a general demur- the injuries or damages, if any, caused by rer to the petition is therefore affirmed.

the negligence of defendant, and assess such amount as will, in your judgment, reasonably compensate him therefor.” This instruction

is assigned as error, because it authorized TEXAS & P. RY. CO. V. FRANK. the jury to allow the plaintiff more com

pensation for loss of time than was author(Court of Civil Appeals of Texas. June 14, 1905.)

ized by his pleading. The assignment is well

taken, and, as there was testimony tending 1. DAMAGES-PERSONAL INJURIES-INSTRUC

to show greater damage resulting from loss TIONS. Where a petition for injuries alleged that

of time than was set up in the plaintiff's plaintiff was confined to his bed 10 days, at a petition, the error complained of was maper diem loss, and his testimony showed that terial, and, the evidence on the subject being he lost 15 whole days and parts of other days,

too indefinite for the error to be cured by a charge that the jury, in estimating plaintiff's damages, might consider “any loss of time by

remittitur, a reversal must follow. City of him," was erroneous and prejudicial.

Dallas v. Jones, 93 Tex. 38, 49 S. W. 577, (Ed. Note.-For cases in point, see vol. 15, 53 S. W. 377; Railway v. Taylor (Tex. Civ. Cent. Dig. Damages, &$ 441-445; vol. 46, Cent. App.) 58 S. W. 844. Dig. Trial, $ 595.)

We also hold that appellant's requested in2. SAME -- CUBE BY REMITTITUR-INDEFINITE

struction No. 11 should have been given. The EVIDENCE. Where a charge on the measure of dam

court's charge on the subject of contributory ages for personal injuries erroneously permits negligence was general, while the requested a greater recovery than is authorized by the

instruction referred to was more specific, pleadings for loss of time, and the evidence on

and, being correct in form, it was error to the subject is too indefinite for the error to be cured by remittitur, a judgment for plaintiff

refuse to give it. must be reversed.

No error was committed in refusing to per(Ed Note.-For cases in point, see vol. 3, mit the engineer and fireman who were runCent. Dig. Appeal and Error, $ 4551.)

ning the train on the occasion in question 3. RAILROADS ACCIDENTS - ACTIONS-Evi- to testify that it was their habit or custom In an action against a railroad for injur

to ring the bell and blow the whistle at the ies, testimony of the engineer and fireman that

place where the accident occurred. Ry. Co. it was their habit or custom to ring the bell and V. Johnson, 92 Tex. 380, 48 S. W. 568.

DENCE.

Some other questions are presented, on all for a foreclosure of his alleged lien upon the of which we rule against the appellant. said lot of land, and improvements thereon.

For the errors pointed out, the judgment The record does not show that appellee W. is reversed, and the cause remanded.

L. Lyon filed any answer in the case. ApReversed and remanded.

pellee Carry Lyon answered by general demurrer, general denial, and pleaded specially, in substance, that she is the wife of appellee

W. L. Lyon, and that she and her husband SWEET v. LYON et al.*

had been living separate and apart since (Court of Civil Appeals of Texas. May 17, April 3, 1904, and are still living separate 1905.)

and apart, and that she and her husband 1. HOMESTEAD-LIEN.

occupied said lot continuously since NoWhere land had become a homestead prior

vember, 1901, and up to their separation, as to the owner executing a note which did not include any of the purchase price of the land,

their homestead, and that since their sepathe payee could acquire no lien on the land as ration she and her children have occupied security for the note.

same as their homestead; that the lot in 2. APPEAL-ASSIGNMENT OF ERROR-PROPO

controversy was conveyed to her and her SITION. A proposition under an assignment of error

said husband by 0. Sweet and M. E. Sweet, which is not germane to the assignment will not

acting for themselves and appellant, with be considered on appeal.

full authority from said appellant so to act, 3. HOMESTEAD-PLEADING SETTING UP RIGHT who were the owners of said lot or parcel of -NECESSITY.

land, by parol gift, in November, 1901, by Where, in an action for the foreclosure of a lien, to secure a note, defendant claimed the

clear designation and description, and by land under a parol gift from plaintiff and oth- marking and staking out said lot, and givers, former owners thereof, and alleged that

ing same into possession of her and her the land was his homestead, plaintiff could not

said husband, and that same was given to assert any right by virtue of the land being his homestead prior to and at the time of the parol

her and her said husband in fee-simple title, gift without pleading such right.

without any reservation; that she and her [Ed. Note.-For cases in point, see vol. 25, said husband, with full knowledge of said Cent. Di Homestead, 88 170, 390-394.)

donors, took possession of said land upon 4. APPEAL-COSTS-ERROR IN JUDGMENT. the belief that it had been given to them,

Where plaintiff, suing on a note, failed to call the trial court's attention to an error in

and in December, 1901, erected permanent calculation whereby the judgment was rendered

improvements upon said land upon the faith for a smaller sum than due, he is not entitled of the gift to them; that the improvements to costs on appeal.

erected by them consisted of a dwelling Appeal from District Court, Fannin Coun

house, valued at $1,200, and that the value of ty; Ben H. Denton, Judge.

the original lot, independent of said improveAction by Clarence H. Sweet against Carry ments, was $100, and that their possession Lyon and another. From a judgment grant

of said lot bad been continuous and unintering insufficient relief, plaintiff appeals. Mod

rupted since November, 1901. Said appellee ified.

further alleged that the note sued on was

not a vendor's lien note, and was not given J. M. Willis and H. G. Evans, for appel

to secure any part of the purchase money of lant.

said lot, but that said note is an attempted

lien on said homestead of said appellee, givEIDSON, J. Appellant brought this suit

en by W. L. Lyon to secure the loan of mon. in the court below on a promissory note al

ey made by M. E. Sweet to him, the said W. leged to have been executed by appellee W.

L, Lyon, and appellee Carry Lyon; that said L. Lyon on the 7th day of February, 1902,

alleged lien was given in February, 1902, in favor of appellant, for the sum of $500,

long after appellees had gone into possession bearing interest at the rate of 10 per cent.

of said lot as their homestead, and after they per annum from the 1st day of January, 1902, interest payable annually, and stipu

had erected permanent improvements therelating for 10 per cent. additional on princi

on; that said lot was the homestead of ap

pellees when said note here sued on was pal and interest for attorney's fees, and alleged that said note was given for part of the

given; that said note is signed by W. L. purchase money of a certain lot of land, and

Lyon, and is not signed by Carry Lyon; and improvements thereon, situated in the town

that said Carry Lyon failed and refused to of Trenton, in Fannin county, Tex. Appel

sign said note, and said note does not and

cannot constitute a valid lien on her homelant also alleged that, at the date of the exe

stead, for the reason that it was not given cution of the note, appellants 0. Sweet and M. E. Sweet executed a deed of conveyance

a part of the purchase price thereof. to appellees for said lot of land, and in said

Appellee Carry Lyon further alleged that conveyance retained a lien to secure the

said note was given for money borrowed, and payment of the said note. Appellant prayed

that a part of said money was used in the for judgment for the amount of said note,

erection of improvements on her said homeprincipal, interest, and attorney's fees, and

stead, but that said improvements were

erected prior to the execution of said note. *Rehearing denied June 28, 1905, and writ of error Appellee Carry Lyon prayed that the alleged denied by Supreme Court.

as

Tappellant PP second proposition under his

parol gift of said land to her and her hus- valuable permanent improvements thereon. band be established, and that she have judg- Wooldridge v. Hancock, 70 Tex. 21, 6 S. W. ment for said land, and that she also have 818; Baker's Ex'rs v. De Freese (Tex. Civ. judgment establishing her homestead right | App.) 21 S. W. 963; Samuelson v. Bridges in said premises, and declaring said note an (Tex. Civ. App.) 25 S. W. 636; Doyle v. Bank invalid mortgage on said premises. Appel- (Tex. Civ. App.) 50 S. W. 480. lant, by supplemental petition, presented a general demurrer and general denial to ap- second assignment of error is not germane pellee Carry Lyon's said answer. The case

to the assignment of error, and therefore is was submitted to the court without a jury, not entitled to consideration. However, if and judgment was rendered for the appellant appellant could assert any right to the lot against W. L. Lyon for the sum of $670.04, by virtue of its being his homestead prior to withont foreclosure of the lien prayed for. and at the time of making the parol gift to

There are no conclusions of fact or law appellees, he had no pleadings raising such embraced in the record. We find that the issue in this case, and without such pleadmaterial allegations of the special answer ings he could not avail himself of any such of appellee Carry Lyon are supported by the right. evidence, and that the note sued on was not By his first assignment of error, appellant given for the purchase money of the land in contends that the court erred in rendering controversy, and that the lot of land in con- judgment in favor of appellant for $670.04, troversy was the homestead of W. L. and when the undisputed evidence is that there Carry Lyon at and prior to the execution of is due and owing to appellant on the note the note sued on, and was such homestead up sued upon the sum of $709.22; being the to the separation of the said W. L. and Car- principal, interest, and attorney's fees, as ry Lyon, and thereafter and at the date of shown by said note. We think appellant is the trial was the homestead of appellee Car- correct in this contention, and the judgment ry Lyon. There was no controversy as to of the court below will be reformed so as to the execution of the note sued on by W. L. recite the amount recovered by appellant, Lyon, nor as to his personal liability thereon. including principal, interest, and attorney's

Appellant's second assignment of error fees, to be $709.22, instead of $670.04. But complains of the refusal of the court to fore- appellant is not entitled to the costs of apclose the alleged lien upon the premises de- peal, on account of not having called the scribed in his petition, upon the ground that attention of the court below to the mistake said lien is fully expressed and reserved in in the amount of the judgment by motion the deed executed by 0. Sweet and his wife, for a new trial or otherwise, as evidently, M. E. Sweet, and Clarence Sweet, ct date if he had done so, that court would have February 7, 1902, and that said lien is ac

made the proper correction. knowledged and retained in the note sueä on The judgment of the court below is reformto secure the payment thereof, principal, in- ed as above indicated and affirmed. terest, and attorney's fees.

Reformed and affirmed. Appellant's first proposition under this assignment of error is that, where a deed conveying land by its terms reserves a lien

MORRISON V. HAZZARD et al. upon the property to secure the payment of a specific sum of money, no homestead right

(Court of Civil Appeals of Texas. June 21, in the property can be acquired by the pur

1905.) chaser as against the lien; though the sum

1. STATUTE OF FRAUDS-CONTRACT FOR SALE

OF REALTY-DESCRIPTION OF VENDOR. named constitute no part of the purchase

A contract for the sale of realty describmoney proper, the title only vests subject ing the vendor as the "estate of F." did not to the lien. We are of the opinion that ap- sufficiently describe the vendor to comply with pellant's contention as manifested by this

Sayles' Rey, Civ. St. 1897, art. 2543 (Statute

of Frauds). proposition is not sound, especially when attempted to be applied to the pleadings and

[Ed. Note.--For cases in point, see vol. 23,

Cent. Dig. Frauds, Statute of, 88 212, 213.) evidence in this case. Appellee Carry Lyon's

2. SAME--VARIATION BY PAROL. special answer and the evidence adduced in

Where a contract for the sale of land desupport thereof show that the homestead scribed the vendor as the "estate of F.," parol character was impressed upon the lot in con

evidence that by the quoted words was meant,

not the heirs, legatees, and devisees of F., but troversy prior to the execution of the note

those of another person, would be inadmissible sued on, and that the note was not given for because varying the written instrument. the purchase money of said lot. The prop- [Ed. Note.--For cases in point, see vol. 20, erty being a homestead, no valid lien could Cent. Dig. Evidence, 88 1816, 1906-1908 ; be given upon it. Loan Co. v. Blalock, 76

vol. 23, Cent. Dig. Frauds, Statute of, 8 375.] Tex. 88, 13 S. W. 12; Freeman v. Hamblin,

3. SAME-DESCRIPTION OF LAND.

Where a contract for the sale of land show1 Tex. Civ. App. 163, 21 S. W. 1019; Kemp

ed on its face that a part of the land was owned ner v. Comer, 73 Tex. 196, 11 S. W. 194. by an individual and part by a certain estate, Appellees acquired title to the lot in contro- but did not describe the respective parts owned versy by virtue of the parol gift; taking pos

by each, the contract was insufficient to comply

with Sayles' Rev. Civ. St. 1897, art. 2513 session in pursuance thereof, and making (Statute of Frauds).

88 S.W.-25

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OF

4. SAME LIABILITY UNAUTHORIZED of, then I obligate myself to return the said AGENT.

Morrison the sum of $250 now paid, upon Where a contract made by an agent is void under the statute of frauds, the agent,

the return and cancellation of this receipt, thought not authorized by his alleged principal,

balance of cash payment to be made and is not liable thereon.

notes and deed of trust to be executed at Error from District Court, Dallas County ;

once upon delivery of special warranty deed Richard Morgan, Judge.

properly conveying the hereinbefore deAction by R. H. Morrison against Eliza

scribed property. It being understood that beth Hazzard and others. The action was

the property is to be free and clear of all dismissed, and plaintiff brings error. Af

incumbrances of whatsoever nature, includfirmed.

ing taxes for the year 1901.

(Agent of) H. A. Kabler, by B. 0. Weller. Cobb & Avery, for plaintiff in error. Bry

“Accepted: R. H. Morrison. an T. Barry, Etheridge & Baker, and H. L.

"(10 cents revenue stamps on original.)" Bromberg, for defendants in error.

It will be observed that said contract purEIDSON, J. This suit was brought by

ports to bind E. Hazzard and the estate of plaintiff in error against defendants in error

F. Lawrence. The petition alleged that, by to enforce the specific performance of a writ

the terms in said contract, "estate of F. ten contract for the sale of two lots in the Lawrence” was meant and understood by all city of Dallas, and, in the alternative, for parties to mean the heirs, legatees, and damages for its breach, if specific perform

devisees of Archilus Lawrence and Franklin ance was refused. Defendants in error filed Lawrence, deceased, said F. Lawrence being and presented in the court below general

the executor and manager of said estates. and special exceptions to plaintiff in error's

We do not think the writing which constiamended petition and trial amendment, which

tutes the contract can be varied or added to were sustained by the court, and the suit

by parol testimony, so as to give the names dismissed.

of parties selling the land, when the writing Plaintiff in error's first assignment of er

itself fails to do so. In other words, the ror complains of the action of the court be

writing must contain the names of the parlow in sustaining the general demurrers and ties selling the land and to be bound theregeneral exceptions contained in defendants' by, or must properly describe them; otheranswers to plaintiff's first amended petition

wise it would be materially defective, and and trial amendment; plaintiff in error's

could not constitute a written contract for contention being that said petition and trial

the sale of land. The names of the sellers amendment showed a good cause of action,

of the land may be embraced in the body of and therefore said general demurrers and the writing or subjoined or attached thereto exceptions should have been overruled. The in any manner showing an intention to be written contract, specific performance of bound thereby; or such names may be emwhich plaintiff in error sought by this suit braced in some other properly signed paper to enforce, and which is set out in his peti- to which reference is made in the principal tion, is as follows:

writing or memoranda ; or the persons sell"Dallas, Texas, May 20th, 1901. Received ing may be described in such writing or of R. H. Morrison through Murphy & Bolanz memoranda, and it would be sufficient; but the sum of $250 in part payment for lots 7 a writing without the names of the sellers and 8 in block 79 1-4-136 according to Mur- of the land embraced therein or subjoined or phy & Bolanz' official map of the city of attached thereto in some way, showing an Dallas, Texas, said lots fronting together intention to be bound thereby, or in some 100 feet on the north line of Jackson street other paper properly signed and referred to and 90 feet on the west line of Prather in the original writing or memoranda, or street, this day sold by me as agent of the which writing or memoranda does not prop. estate of F. Lawrence, 25 feet and E. Haz- erly describe the vendors, is fatally defeczard 75 feet to the said R. H. Morrison for tive, and cannot be used as the basis of an the purchase price of $5,000 upon the follow- action for specific performance. When the ing terms: $3,000 cash, and the balance in sellers are properly described in the writtwo notes of equal payments, and due and ing, parol evidence is admissible to apply payable one and two years after date, with the description and identify the persons de6 per cent. interest, the interest payable scribed. In the writing under consideration, semi-annually as it accrues with the privi- the names of the sellers of the 25 feet of lege granted the maker of paying off any or land mentioned are not given, nor are they all of said notes at any time before the ma- in any manner described. The words “esturity upon giving sixty days notice, said tate of F. Lawrence” clearly are not the notes to be secured by the usual form of name or names of any person or persons, vendor's lien and deed of trust upon the and it is equally clear that they do not conproperty, conditioned upon a good and au- stitute the description of any person or perthentic abstract showing good and accepta- sons. The word “estate," as generally used, ble title to the property, and should the title means property of every character, and is to the property prove not good, and cannot ordinarily applied to property of a decedent, be made good within a reasonable time, say a ward, a lunatic, a bankrupt, etc. ; that is,

t to exceed sixty days from the date here- to property being administered in the courts.

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