| Tex. App. | Mar 16, 1911
This writ of error was sued out to revise a judgment, of tbe district court of Hardin county in favor of defendant in error against plaintiffs in error, Sam J. Adams, O. G. Adams, and W. E. Adams.
Tbe judgment is against Sam J. Adams for tbe sum of $857.26, the amount due upon two vendor’s lien notes executed by said Adams in favor of defendant in error, and against all of the plaintiff's in error foreclosing tbe vendor’s lien securing said notes, upon a tract or parcel of land in Hardin county described as lot No. 8 in Williams' addition to the town of Kountze.
Tbe petition," wbicb is In ordinary form of suit on note and to foreclose vendor’s lien, was filed April 16, 1908, and service bad on defendants April 17, 1908. Defendants filed their original answer on March 27, 1909. Tbe judgment was rendered on March 30, 1909.
It appears from tbe pleadings of plaintiff Jordan that the land was purchased from him by Sam J. Adams for bis mother, G. G. Adams, and tbe deed was made to her at tbe request of Sam J. Adams, who executed tbe vendor’s lien notes sued on for tbe balance of tbe purchase money.
Tbe deed is one of general warranty and expressly reserves a vendor’s lien to secure tbe payment of said notes. O. C. Adams and her husband, W. E. Adams, were in possession of tbe property at tbe time tbe suit was brought, and plaintiff Jordan had no notice of any sale of tbe property by tbe defendants.
The defendants’ answer contains a general demurrer and general denial and spe
It is further averred as follows: “Still further answering herein, all of said defendants, W. E., O. O., and Sam J. Adams, respectfully represent unto the court that the title to said property upon which plaintiff seeks to foreclose a vendor’s lien herein is clouded and defective, in this, that, as is of record manifest, J. J. Allums is setting up some claim of title by virtue of patent from the state of Texas, to him of recent date, to the land in controversy in this suit, and upon which plaintiff seeks to foreclose his lien of the note sued upon herein. These defendants further represent that the heirs of Lewis T. Ferguson whose names and residences are unknown to these defendants also claim some right and title to the lands and lots involved in this suit, and upon which plaintiff seeks to foreclose lien. These defendants jointly and severally especially represent unto your honor: That, when said lands were purchased by the defendant Sam J. Adams of M. P. Jordan, they were purchased with the express understanding and with the express assurance and with warranty of title on the part of M. P. Jordan to the said Sam J. Adams that the title to said property was perfect, and that, acting on such representation of the said M. P. Jordan, the said Sam J. Adams paid to him the sum of $600 in cash as part of the purchase money for said land and lots, and has since paid, to wit, September 7, 1907, the sum of $200, which has not been credited on said notes. That the said M. P. Jordan is insolvent, and that if defendants lose this suit they do not know of any property owned by the said M. P. Jordan in this state subject to execution out of which the amount of money already paid to him by this defendant, Sam J. Adams, could be made. Wherefore these defendants pray that the said Hill O. Adams, who is temporarily in Dallas county, Tex., and heirs of Lewis T. Ferguson and the said J. J. Allums who reside in Hardin county, Tex., be made parties to this suit, and required to plead herein, and that the collection of said debt be stayed until the title is perfected by decree adjusting all conflicting titles, and, in the event that the title be adjudged by the court on a final trial hereof against the said M. P. Jordan, then, by way of cross-bill, the said Sam J. Adams prays for judgment against the said M. P. Jordan for the sum of $600, paid him in cash payment on said property, together with legal interest thereon from January 19, 1906, and that the notes sued on herein be canceled and held for naught, and that defendants have judgment for their costs, for which they pray execution therefor.”
To this answer plaintiff filed the following exceptions: “Plaintiff demurs to defendants’ said answer, and says that the same shows no valid defense, legal or equitable, to this suit, and no valid legal ground for delaying or postponing the trial of this suit. And for special exception to said answer plaintiff says that all that portion of same which seeks to defeat plaintiff’s recovery or delay the trial of this suit, because of alleged defects in plaintiff’s title, is vague, indefinite, uncertain, and insufficient; that said answer fails to allege wherein said title is defective or clouded by the claim of the persons named; that there was either fraud on the part of the plaintiff, ignorance on the part of defendants as to such defects, or that they have been evicted by a superior title, and what such title was. Plaintiff also specially excepts to all that portion of said answer which seeks to delay the trial of this case for the purpose of making Hill O. Adams a party: First, because it is not alleged that he acquired title from C. C. Adams, to whom the property was conveyed by plaintiff, but from Sam J. Adams; second, if such title was acquired from O. C. Adams, it was subsequent to plaintiff’s deed to O. O. Adams, and, being as such a subsequent purchaser, said defendants would have na right to delay the trial of this suit, and particularly so, since said answer fails to allege that plaintiff had any knowledge either actual or constructive of the alleged conveyance to said Hill O. Adams.”
These exceptions were sustained by the court and judgment rendered for plaintiff, as before stated, for his debt and foreclosure of his vendor’s lien. The record contains no exception by the defendants to the ruling of the court sustaining plaintiff’s exception to their answer, and no exception to the judgment.
A motion for new trial on the ground that “the judgment rendered herein is against the law and the evidence” was filed on March 31, 1909, the day after the judgment was rendered; hut the record does not disclose that any action was taken thereon by the court or that it was ever presented to the court.
The petition and supersedeas bond for writ of error were filed on October 1, 1909, and service of writ of supersedeas was had
On May S, 1910, plaintiffs in error filed tbe following assignments of error:
“In tbe aboye cause come tbe defendants Sam J. Adams, O. 0. Adams, and W. E. Adams, and assign tbe following errors to tbe action of tbe trial court and pray tbe same may be made a part of tbe record in this cause:
“First assignment of error: Tbe court erred in rendering judgment in favor of plaintiff against defendants.
“Second assignment of error: Tbe court erred in overruling defendants’ prayer as set out in third paragraph of their answer, wherein they show tbe court that Hill C. Adams is a necessary party to this suit and pray tbe court that Hill C. Adams be made a party.
“Third assignment of error: Tbe court erred in not granting defendants’ prayer to have Hill C. Adams, J. J. Albums, and tbe heirs of Lewis T. Ferguson made parties to this litigation.
“Fourth assignment of error: Tbe court erred in not granting defendants a new trial herein because the law and tbe evidence are against plaintiff.
“Wherefore, for the errors assigned, tbe defendants pray that said cause be reversed and remanded for a new trial.”
The record was filed in this court on May 8, 1910. There is no statement of facts accompanying tbe record, and no briefs have been filed by tbe plaintiffs in error. Defendant in error has filed motion and brief asking tbe judgment of tbe court below be affirmed with 10 per cent, damages for delay.
On the eve of tbe trial of the court below, and nearly a year after they bad been served with citation, they for tbe first time filed an answer asking that tbe vendee of Sam J. Adams, and other parties asserting a claim to tbe land, be made parties to the suit.
Hill C. Adams was not, under tbe allegations of defendants’ answer, a necessary party to this suit, and tbe court properly refused to delay tbe trial of tbe cause for tbe purpose of allowing defendants to have him made a party, conceding that be was a proper party. Foster v. Powers, 64 Tex. 249.
Under this rule it is perfectly clear that the exceptions to defendants’ plea in the lower court setting up adverse claim to the land by J. J. Allums and the heirs of Lewis T. Ferguson were properly sustained.
As before stated, no exception was taken in tbe court below to this ruling, and no statement of facts was prepared by the defendants, or at least none has been sent up with the record, and there is nothing in tbe record to indicate that defendants in tbe court below bad any defense to the suit. They have failed to prosecute their writ of error by filing briefs in this court. We think no other reasonable conclusion can be drawn from tbe facts shown by tbe record than that tbe writ of error was sued out for delay, and this abuse of the right of appeal entitled the defendant in error to an affirmance of tbe judgment of tbe court below with 10 per cent, damages. Sayles’ Civ. St. art. 1024; Grier v. Powell, 14 Tex. 321; Marx v. Brown, 42 Tex. 111" court="Tex." date_filed="1874-07-01" href="https://app.midpage.ai/document/marx-v-brown--co-4892304?utm_source=webapp" opinion_id="4892304">42 Tex. 111; Granberry v. Jackson, 132 S.W. 508" court="Tex. App." date_filed="1910-11-07" href="https://app.midpage.ai/document/granberry-v-jackson-3965232?utm_source=webapp" opinion_id="3965232">132 S. W. 508, recently decided by this court.
It is therefore ordered that tbe judgment of the court below be affirmed, with 10 per cent, damages for delay.
Affirmed, with damages.