Imágenes de páginas
PDF
EPUB

John B. Littler, Ellis Douthit, and Matlock, Miller & Dycus, for appellants. S. H. Morrison, for appellee.

was superior to a subsequent attachment' by a creditor of the grantors, irrespective of whether the property conveyed was a homestead at the time of the conveyance. 5. APPEAL-ASSIGNMENTS OF ERROR.

An assignment of error will not be considered where it is not supported by any statement as required by the rules. 6. TRIAL-INSTRUCTIONS.

There is no error in refusing to give a special charge where the issue to which it relates was fully covered by the general charge and another special charge given at the same party's request.

Appeal from District Court, Fannin County; Ben H. Denton, Judge.

Action by the Parlin & Orendorff Company against C. C. Vawter and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

J. M. Willis and H. G. Evans, for appellant. R. B. Young and Meade & McGrady, for appellees.

STEPHENS, J. Appellants purchased of appellee four sections of school land in Howard county, Tex., for which they made a cash payment of $2,500. Before this sale was made, appellee owed them several hundred dollars, which indebtedness according to his version, was extinguished by the sale, but, according to the version of appellants, remained unsatisfied, and this suit was brought to recover the amount claimed to be due. The case was one of conflicting evidence, and the verdict in appellee's favor therefore establishes his contention.

There was no error in allowing appellee to introduce in evidence the application for continuance made by the appellants through their attorney, since it contained an admission which contradicted the testimony of each of them on the trial. H. E. & W. T. R. Co. v. Dewalt (Tex. Sup.) 70 S. W. 531, and cases there cited.

The charge of the court is criticised, but we are unable to see how it could have been misleading, since it submitted in plain language the controverted issues of fact raised by the pleadings and evidence.

The verdict is also complained of, but was warranted by the testimony of appellee. That we have no power to set aside a verdict clearly supported by the testimony of a credible witness, because of a conflict between his testimony and that of other witnesses, is too well settled to admit of discussion.

The judgment is therefore affirmed.

EIDSON, J. This is a suit of trespass to try title brought by appellant, as plaintiff in the court below, against appellees, C. C. Vawter, Ida Leeper, and her husband, J. A. Leeper, for the purpose of recovering the title to and possession of lot No. 12 in block No. 21, in the town of Leonard, in Fannin county, Tex. Appellant also alleged in his petition that the deed from C. C. Vawter and wife to Ida Leeper of date October 16, 1896, was voluntary and without consideration, and made for the purpose of hindering, delaying, and defrauding the creditors of C. C. Vawter, and especially appellant, of which purpose said Ida Leeper was fully cognizant at the time such conveyance was made, and that said deed is a cloud upon the title of appellant. Appellant prayed that the same be declared fraudulent and void, and that it be set aside and held for naught. Appellees, except C. C. Vawter, answered by general demurrer, general denial, and plea of not guilty; and appellee Ida Leeper further answered that the deed executed to her of date October 16, 1896, was made in good faith for the bona fide purpose of paying her a just debt, which said C. C. Vawter then owed her, in amount equal to the property so conveyed; that the property was the business homestead of C. C. Vawter at that date; and prayed that appellant take nothing by its suit, and that she be quieted in her title to said premises. C. C. Vawter filed a disclaimer, and prayed to be discharged with his costs. The case was tried before a jury, and the court submitted special issues to the jury, and, upon the answers made thereto, the court entered judgment for appellees Ida Leeper and J. A. Leeper for the lot in controversy.

Appellant's first assignment of error complains of the action of the court in excluding the certified copy of the depositions of C. C. Vawter and his wife which were taken in the case of Parlin & Orendorff Company against C. C. Vawter et al., No. 15,373 in

PARLIN & ORENDORFF CO. V. VAWTER

et al.* (Court of Civil Appeals of Texas. May 24,

1905.) 1. EVIDENCE DEPOSITION IN ANOTHER CAUSE.

Depositions taken in a cause are not admissible in evidence in a subsequent cause against one not a party to that in which they were taken.

(Ed. Note.-For cases in point, see vol. 16, Cent. Dig. Depositions, 88 297, 298.) 2. JUDGMENT-EVIDENCE-RECITALS.

Where, in a suit to set aside a conveyance as in fraud of plaintiff, there was an issue as to what constituted the homestead of the grantors at the time of the conveyance, recitals in a judgment obtained by plaintiff against the grantors establishing their homestead were not admissible as against the grantee, who had not been a party to the former action. 3. APPEAL-ASSIGNMENTS OF ERROR.

An assignment of error which raises sep. eral independent and distinct matters does not comply with the rules of court, and will not be considered. 4, ATTACHMENT_OWNERSHIP OF PROPERTY.

Where a deed by a husband and wife was made in good faith and was not fraudulent, it

*Rehearing denied June 28, 1905.

as

the district court of Dallas County, Tex., the charge of the court, in that to question which depositions show that C. C. Vawter No. 1, which is as follows, “Was the propand his wife used and occupied 80 acres of erty in controversy the business homestead land situated four miles west of Leonard of C. C. Vawter on October 16, 1896?” the for a period of nearly 20 years prior to the jury answered, “Yes ;" to question No. 4, failure of the said Vawter on October 16, which is as follows, "Did C. C. Vawter 1896, as their homestead, and that it had all abandon his homestead in the country; if that time been their homestead; appellant's so, at what date?" the jury answered, "No." contention being that said depositions were The jury, in answer to question No. 3 sublinks in the chain of its title, and were dec- mitted to them by the court, which was as larations of Vawter and his wife as to their follows, "Was the deed from C. C. Vawter homestead at the time of his failure, and and wife to Ida Leeper made in good faith, for a period of 20 years prior thereto. In or was it fraudulent as to C. C. Vawter's our opinion, the court below did not err in creditors?" found that the deed to Ida Leepexcluding said depositions. Ida Leeper not er was made in good faith. If the deed to being a party to the suit in which said depo- Ida Leeper was made in good faith and not sitions were taken, they would be but hear- | fraudulent, the title to the lot in controversy say, res inter alios acta, as against her, and vested in her prior to the levy of the appeltherefore not admissible. National Bank V. lant's attachment, and hence was not subMulkey, 94 Tex. 395, 60 S. W. 753; Stephens ject to such attachment, and, that being true, V. Johnson (Tex. Civ. App.) 45 S. W. 328; it was immaterial as to whether the properWallace v. Berry, 83 Tex. 328, 18 S. W. 595. ty conveyed was homestead or not at that

By its second assignment of error appel- date. lant complains of the action of the court in Appellant's sixth assignment of error is giving to the jury special charge No. 1, re not in compliance with the rules of this quested by appellees, which is as follows: court, because same is not supported by any "You will exclude from your consideration statement, and therefore it will not be conthe recitals in the verdict and the judgment sidered. Ry. Co. v. Puente et al. (Tex. Civ. rendered in the district court of Dallas App.) 70 S. W. 362; Chimine et al. v. Baker county, concerning what the court in that et al. (Tex. Civ. App.) 75 S. W. 330; Raycase adjudged to be the homestead of said wood Rice Canal & Milling Co. v. Langford Vawter and wife, because what took place Bros. (Tex. Civ. App.) 74 S. W. 926. Howin that case in Dallas county is not admissi- ever, we are of opinion that the court below ble evidence as to the homestead question did not err in refusing to give to the jury now involved in this suit you are trying. appellant's special charge No. 4, because the Such records were not admitted by the court issue to which it relates was fully covered in the present case as being any evidence by the general charge, and a special charge on the homestead question involved in this given at the request of appellant. suit.” The judgment of the district court of There being no reversible error pointed Dallas county, so far as it decreed title to out in the record, the judgment of the court appellant in the lot in controversy, was ad- below is affirmed. missible, but the recitals in that judgment establishing the homestead of Vawter and wife could only affect the parties to that suit; and, although there is in this case the PARLIN & ORENDORFF CO. v. LEGGETT issue as to what constituted the homestead

et al. of said Vawter and wife at the date of the (Court of Civil Appeals of Texas. June 21, deed by C. C. Vawter to Ida Leeper, still, she

1905.) not being a party to that suit, she could not

ATTACHMENT_OWNERSHIP OF PROPERTY. be affected by the recital in that judgment Where a deed by a husband and wife was as to the homestead, and therefore such re- made in good faith and not fraudulent, it was cital was inadmissible as against her. Har

superior to a subsequent attachment by a cred

itor of the grantor, irrespective of whether the din v. Blackshear, 60 Tex. 132.

property conveyed was a homestead at the time Appellant's fourth assignment of error Is of the conveyance. not in compliance with the rules of this

Appeal from District Court, Fannin Councourt, and therefore will not be considered.

ty; Ben H. Denton, Judge. The assignment raises several independent

Action by the Parlin & Orendorff Company and distinct matters, and, for that reason,

against Alice Leggett and others. From a does not conform to said rules. Cochran v.

judgment in favor of defendants, plaintiff Siegfreid (Tex. Civ. App.) 75 S. W. 542; Baum v. Bank, Id. 863; Wren v. Howland,

appeals. Affirmed. Id. 894; Cammack v. Rogers (Tex. Civ. App.)

J. M. Willis and H. G. Evans, for appel74 S. W. 945.

lant. R. B. Young and Meade & McGrady, Appellant's fifth assignment of error con

for appellees. tends tliat the court erred in entering judgnient for appellees upon the special findings KEY, J. This is a companion case to Parof the jury, because said findings are incon- lin & Orendorff Co. v. C. C. Vawter et al., resistent and contradictory, and contrary to cently decided by this court. 88 S. W. 407. In this case, as in that, the successful appel. lien notes, to the payment of the judgments. lees claim under a prior deed made by C. C. After hearing the evidence, the court below Vawter, and charged by appellant to have directed a verdict for the appellees. been made for the purpose of defrauding The facts, substantially, are as follows: creditors. Appellees, resisting the attack on On May 7, 1894, in the justice's court of Galtheir title, contended (1) that the property veston county, Tex., a judgment was renderinvolved was the homestead of C. C. Vawter ed in the case of Leon & H. Blum against L. when he executed the deed under which C. De Morse for the sum of $169.50, with inthey claim, and therefore creditors could not terest at the rate of 10 per cent. from date attack the sale; and (2) that they bought of judgment. May 18, 1894, execution isthe property in payment of a pre-existing sued upon that judgment, and returned “No judgment, and that there was no fraud in property found." April 19, 1898, this judg. fact. The case was submitted on special is- ment was transferred and assigned to the apsues, and the jury found for appellees on pellant, W. H. Howard. This judgment was both the issues referred to.

recorded and abstracted in Bowie county The finding of the jury that the sale was May 7, 1899. On the 22d day of December, in good faith, and not made to defraud cred- 1892, Leon & H. Blum recovered a judgment itors, is amply supported by the testimony, against L. C. De Morse for the sum of $1,and therefore it is unnecessary to decide any 418.15, with 10 per cent. interest per annum questions relating to the issue of homestead. from date of judgment. April 18, 1898, this Both parties claiming under C. C. Vawter, judgment was transferred and assigned to and appellees' title being older than appel- | appellant, W. H. Howard. This judgment lant's, if the sale to appellees was not fraud- was also recorded and abstracted in Bowie ulent, their title must prevail, although the county. property may not have been Vawter's home

The plaintiff admitted the following facts stead.

pleaded by the appellees: That the appellee Our rulings in the other case concerning Mrs. M. L. De Morse married L. C. De Morse the admissibility of testimony are applica- on the 3d of January, 1869; that at the time ble to this, and support the rulings here com- of her marriage she was possessed of a large plained of. No reversible error has been amount of money and property, both real shown, and the judgment will be affirmed. and personal, having inherited the same from Affirmed.

her father; that after their marriage she loaned her husband large sums of money,

and advanced him a large amount of propHOWARD V. MAYHER et al.*

erty, which he promised to pay, with interest;

that in such manner he was indebted to her (Court of Civil Appeals of Texas. May 24,

on or before the 26th day of November, 1900, 1905.)

in various sums, aggregating about $20,000; 1. HOMESTEAD-JUDGMENT- LIEN CONVEY- that during his lifetime he offered and promANCE-EFFECT.

ised to pay her back, and at the time of his The purchaser of a homestead acquired it unaffected by the lien of a judgment against

death he was still largely indebted to her; the grantor.

that since their marriage they have lived to(Ed. Note.-For cases in point, see vol. 25, gether as husband and wife until the death Cent. Dig. Homestead, § 228.]

of L. C. De Morse, which occurred on the 2. SAME-PROCEEDS OF SALE RIGHTS OF 6th day of May, 1902; that they became the CREDITORS. Where a wife parted with her interest in

owners of the lands and property described the homestead, on agreement that she should

in plaintiff's original petition, situated in receive the proceeds in payment of a debt from Texarkana, Bowie county, Tex., prior to the the husband, a judgment lien creditor of the month of October, 1888, and during the sumhusband could not subject to his lien the ven

mer and fall of that year they erected a resdor's lien notes given the wife.

idence upon the lots, and lived in and occuAppeal from District Court, Bowie County; | pied the same as their homestead from that S. P. Paunders, Special Judge.

time up to and including the date of the sale Suit by W. H. Howard against John W. of the same to the defendant John W. MayMayher and others. From a judgment in her; that during all that time, to the date favor of defendauts, plaintiff appeals. Af- of the sale of the same to Mayher, the propfirmed.

erty was their homestead, and was used by Chas. S. Todd, for appellant. Glass, Estes

them as such; that in the summer or fall & King, for appellees.

of 1900 the codefendant John W. Mayher

proposed to buy their homestead, and that FISHER, C. J. Appellant, as the owner appellee Mrs. M. L. De Morse would not of two judgments against L. C. De Morse, agree to the sale of the same unless her huswhich had been recorded in Bowie county,

band L. C. De Morse would have the probrought this suit against the appellees to sub

ceeds and the notes taken to secure the purject certain real property, or the proceeds chase price for the same made to her, and of the sale thereof in the shape of vendor's

turned over to her and paid to her in part on

the debt which her said husband then owed *Rehearing denied June 28, 1905, and writ of error her; that during the pendency of the trade denied by Supreme Court.

serve

with Mayher, and while it was being made, creditor, and she took said notes and reher husband, L. C. De Morse, agreed with tained the legal title to said land subject her that when the homestead was sold to to a charge for the payment of said judgMayher the proceeds and notes would be ment lien." turned over to her and paid to her in part None of these objections to the judgment, payment on the debt that he owed her; that in our opinion, are well taken. It may be thereupon she joined with her husband in conceded that the appellant was a judgment the sale of the homestead to the defendant lien creditor of L. C. De Morse at the time Mayher, and executed and delivered to him that the homestead was sold, but, so long as a warranty deed conveying the same, and her the homestead continued and was not abanhusband procured from Mayher the proceeds doned during the ownership of L. C. De that were paid in cash, and the notes that Morse and his wife, no rights were acquired were given to secure the balance of the pur- against it by virtue of the judgment lien. chase money were made payable to the ap- The judgment lien was no impediment to a pellee Mrs. M. L. De Morse, and turned the valid sale by the parties asserting the homeproceeds and notes over to her, and paid stead right to a purchaser; and such purthem to her, immediately upon the execution chaser, if he acquired the property at a time of the deed, in part payment of the debt that when the homestead right existed, would rehe then owed her, and delivered the proceeds ceive it unaffected by the judgment lien that and the notes over to her to become her sep- might exist generally against the real estate arate and individual property; that ever of the debtor in the county where the judgsince that time she has owned and held the ment is properly recorded. Furthermore, as notes, with the exception of the two that we understand the brief of the appellant, the have been paid, as her separate individual purpose is not to assert and foreclose a lien property and in her own right; that the pro- against the property itself, but the object ceeds and the notes taken to secure the pur- is to subject the vendor's lien notes outstandchase money due by Mayher on the home ing to the lien, claim, and demand of the stead were turned over and delivered and appellant. We do not think it was the purpaid to her in the month of November, 1900, pose and intention of the registration stat. and that the proceeds and notes were exempt, ute to create a lien against the proceeds of and not subject to the payment of the judg- the sale of property, but to create and prement sued on by the plaintiff in this case.

a lien against the property itself. Upon the evidence as stated as aforesaid, While it is true cases might arise in which a the trial court peremptorily instructed a ver- court of equity would permit the proceeds of dict in favor of appellees.

the sale of property against which a lien Appellant assigns the following error: existed to be subjected to the payment of "The court erred in directing the jury to re- the claim of the lien creditor, we are of the turn a verdict in favor of the defendants for opinion that the pleadings of the appellant the following reasons, to wit: (1) The evi- do not make a case of this character. But, dence introduced by the plaintiff was suffi- however, this particular question is not neccient to entitle him to a recovery of a decree essary to be decided in the view that we subjecting the unpaid vendor's lien notes in take of the case. The appellant, as a credthe possession of Mrs. M. L. De Morse to the itor of L. O. De Morse, had no interest whatjudgment lien held and proved by plaintiff. ever in the homestead, as long as that right (2) The evidence introduced by the plaintiff continued ; and Mrs. De Morse, upon the sale entitled him to a decree subjecting to the of the same, was not required to part with payment of his judgment lien the superior her interest therein without the husband legal title remaining in Mrs. M. L. De Morse, complying with the agreement that she by reason of the express reservation of the should receive the proceeds in payment of the vendor's lien contained in the deed from De debt that he owed her. The facts admitted Morse and wife to Mayher. (3) The facts conclusively show that she only agreed to shown by the defendant, Mrs. M. L. De sell, and did sell, upon the express underMorse, and admitted by the plaintiff, are not standing that the proceeds of the sale should sufficient in law to constitute any defense to be turned over to her, and the vendor's lien plaintiff's cause of action, because imme- notes, which the appellant is now seeking to diately upon the sale of the property by De subject to his debt, should be executed and Morse and wife to Mayher the liens of the made payable to her in part payment of the judgments held by the plaintiff attached eo debt due to her from her husband in her sepinstanti to the interest in said land remaining arate right. The sale, when made, was upon in the vendors, subject to a defeasance only this condition, and it took effect immediately by application of the proceeds of the sale to upon the consummation of the sale, and the acquisition of another homestead within whatever rights as a judgment lien creditor six months of said sale. The said proceeds the appellant might have had in the propnot having been so applied within said time, erty, if any at all, were subject to the conthe said judgment lien became absolute from tract upon which the sale was based. the time of the sale, and constituted a charge We find no error in the record, and the which was paramount to the claim of the judgment is affirmed defendant M. L. De Morse as an unsecured | Affirmed.

was

agreement;

that if it should be CREWS v. HARLAN.

found or determined that, under the law, title (Court of Civil Appeals of Texas. June 28,

passed to said Crews, the defendant, and that

said Crews became indebted to plaintiff for 1905.)

the price of said mules, and that, under the SALES · VERBAL RESERVATION OF TITLE-EF

law, plaintiff has a lien on said mules for FECT. A sale of personal property with a verbal

said purchase price, or that said mules, under reservation of title to secure the payment the law, stood good for the purchase price, and of the purchase price constitutes a valid mort- that plaintiff has a lien thereon therefor, and gage between the parties.

not absolute title thereto, holding that a res[Ed. Note.-For cases in point, see vol. 9,

ervation of title is a lien under the law-then Cent. Dig. Chattel Mortgages, 88 31, 38.)

the plaintiff sues the defendant, and asks Appeal from Navarro County Court; A. B. judgment in the alternative for the sum of Graham, Judge.

$105, which was due and to be paid October Action by J. R. Harlan against J. W. 1, 1902, without interest, and for the sum of Crews. From a judgment in favor of plain- $87.50, with interest (this plaintiff here spetiff, defendant appeals. Reversed.

cially waiving any attorney's fees on said

amounts and sums, if he is entitled thereto, J. S. Simkins and Richard Mays, for appellant. Callicutt & Call, for appellee.

and setting no claim to 10% attorney's fees, or attorney's fees for any other amount), and

for the establishment and foreclosure of his EIDSON, J. This suit originally lien on said mules involved in this suit brought in the justice's court of Navarro against defendant and his sureties, as above county by the appellee against the appellant set out, and for costs and general relief.” Apto recover the title and possession of two pellant excepted to the above pleading, and certain mules, appellee alleging in his com- the court below sustained the exception, and plaint that possession of said property was struck from the record the above pleading. delivered to appellant upon the express con- According to the record, there is no testidition that the title to same should remain mony authorizing the verdict and judgment in appellee until the mules were paid for by in favor of appellee for the title and possesappellant. Appellee recovered judgment in sion of the mules. The testimony is unconthe justice's court for the title and possession troverted to the effect that appellee made a of the mules, from which judgment appellant sale and delivery of the mules to appellant, appealed to the county court, where appellee and that the sale was on a credit. The testirecovered the same judgment, from which mony on the part of appellee shows that there appellant has appealed to this court.

was a verbal reserration of the title to the In the county court, in addition to pleading mules until the purchase price was paid. title and right of possession to the property, That of appellant tends to show that there and praying for the recovery thereof, appel- was no reservation of title, but that the sale lee, as a second count in his petition, pleaded was absolute, without any agreement or unas follows: “Second. This plaintiff further derstanding whatever as to a reservation of shows to the court that in about the fall of the title to the property. 1901 the plaintiff delivered to the defendant The Supreme Court, in answer to the questhe two mules in controversy and above de- tion certified by this court, held that a sale scribed, and described in plaintiff's citation of personal property, with a verbal reservaand affidavit for sequestration, but gave no tion of title to secure the payment of the purbill of sale therefor to defendant; that it was chase price, constituted a valid mortgage beintended between plaintiff and defendant that tween the parties. Crews v. Harlan, 87 S. W. no title should pass to the defendant until 656, 13 Tex, Ct. Rep. 63. said defendant should pay for said mules in Appellant's general demurrer to the first full to plaintiff, and defendant should have count of appellee's petition should have been the right to become the owner of said two sustained, as it appears from said count that mules only when he should pay to the plain- the sale of the property was made with a tiff amounts on the following dates, to wit, reservation of title; but appellant's excepthe sum of $105 on or about October 1, 1902, tions to the second count of appellee's petiand interest, and the sum of $87.50 on or tion should have been overruled, and the acabout October 1, 1903, and interest, and until tion of the court below in sustaining the same said amounts, etc., were paid to plaintiff by was error, and appellee has assigned this acdefendant, the said mules were to remain the tion of the court as error by cross-assignment property of plaintiff, and the two mules were of error brought up in the record and presentto stand and remain good as security for the

ed in his brief. payment of the purchase money, and the title For the errors indicated, the judgment of to be reserved in the plaintiff until the above the court below is reversed, and the cause reamount should be paid off and discharged by manded. defendant, according to his promise and

Reversed and remanded.

« AnteriorContinuar »