Davisson v. Eastland County

6 SOUTH lоts, to reference clear etc., -with sells the acquire, as purchasers plan, the lots DAVISSON et EASTLAND COUNTY. al. v. that appurtenant easement, privi- every lots, (No. 283.) to their represents plan advantage, lege, which Court of Texas. Eastland. town, them, or to belonging to as their right Dec. 1927. And owners, the town. citizens of purchasers, not the is use these the purchaser to thus Rehearing Denied March 1928. may right mere according places, public streets, or other <§=353(1) Separate 1. Action suits cannot be — right purposes, vests appropriate but making up maintained as to items different whatever, persons purchasers, that all single cause of action. may invitе, require may so use or their occasions them; split A cause action cannot be conveyance words, the sale in other separate suits different items maintained toas plan, town, its to purchasers, lots making up cause. grant imply or covenant places, public indicat- <§=4 the streets suit for Abatement revival —Prior open upon plan, parties shall be forever ed as same cause of action between same public, in- from all claim or free the use of abates later suit. proprietor, inconsistent terference such use. Pendency prior suit cause ac- for same * * * upon principle parties competent tion between same in court of binding nature of a dedica- irrevocable the tion jurisdiction will abate later suit. this, rests, once a the’soil, etc., way, street, on or laid out on has been 1<§=9 3. Abatement and revival suit —Prior purchased property map, suit, notwithstanding abates later additional street, resumption thereto, parties liability secondary defendant whose is proprietor, way, of bad be an act would party prior to that of suit. acquired faith, upon interests and a That there were additional defend- open. Hence, left faith of its ground ant in later suit is not owner, estoppel pais operates as an plea pendеncy prior in abatement for property, indeed exclusive use of from any action, liability on same cause of where of addi- public use, the- inconsistent with is secondary tional is to and derivative use, it has been dedicated.” to which party from that of suit. See, also, Bowers v. Machir <@=>843 Appeal (4)— and error Conclusion Mills Dallas Cotton overruling plea that court erred in abate- Industrial Co. v. 503; Academy ‍‌‌​‌‌​​​​‌‌‌​​​​​​​‌​​‌​​​​‌‌‌​​‌‌​‌​​‌​‌‌‌​‌​​‌‍(Tex. pretermits plea discussion of in bar. City Antonio Antonio v. San of San Appellate court’s conclusion that trial court 259 S. W. 995. overruling plea preter- erred in abatement held: cited plea last ease bar, mits discussion of which does not may nоt arise on another trial. purposes of land to street dedication “Where duly executed, there was deed was evidenced an 5. Abatement and revival * * * —Prior express express An ded- dedication. appeal pending ment from which time of I.s effective immediate without ication use, second not final. grant unequivocal of land for a if it is an Judgment pending from which highway.” at time of second suit for same was not final. Bell, Appellant, that 'his addition testified that; fence and inclosed with never been <§=>843(2) and error —Whether graded up purpose sec- breach of contract as to items involved in ond suit “The streets * * * plaintiff I unknown to at time of across the land. traffic time, people instituting considered, would all the former suit lots for sale cannot hearing plea look at them and look at involved there and where drive out objection people suppprted by I have no driv- abatement nor evidence. the streets. disposed streets, ing have an The streets were highway.” Iif were full extent breach of Whether nothing. objection amount to it would contract as to items involved second public for a dedicated to the instituting form- unknown to er suit cannot be considered on at time of appeal, where hearing it ment before trial on no in abate- words, appellant Bell’s In other evidence was stopped Montague avenue is that offered that it was not known. tention feet short line; appellees’ find <@=>352(1) 7. Trial as to whether com- supports find- —Issues above detailed the evidence missioners’ court acted for in- best ings court and its based of the trial what terest and for believed was its best appellant by thereon, effect that Insufficient to issue interést held estopped acts, dedication, his and conduct has fraud. deny the street now dedication of himself to Issues submitted as whether com- estopped appellees’ line and is now south court acted for best missioners’ county tain they interest of" question. Therefore the street to fence they passed faith when cer- things. will be affirmed order, believed to be best acted for and whether Affirmed. Digests Key-Numbered topic <g=For see same KEY-NUMBER other cases y. (Tex.) EASTLAND COUNTY Court, order, insuffi- from District such held faith Judge. County; Been, of fraud. issue cient Elzo by against A. <@=»1 6. Action Highways 13(4) court’s 8. —Commissioners’ contractor, discharging judgment roads, accepting From a Davisson and others. against directing delivery him held others, of bonds to and conclusive, ‍‌‌​‌‌​​​​‌‌‌​​​​​​​‌​​‌​​​​‌‌‌​​‌‌​‌​​‌​‌‌‌​‌​​‌‍and Davisson defendants (Const, clearly fraudulent appeal. Reversed and remanded. 2351, 10). 1925, 5, § Rev. art. art. St. § See, also, county court ac- commissioners’ Orders McRae, Eastland, Black & and Conner discharging cepting roads, bondsmen, tain estimates his and contractor Graves, Austin, appellants. for & showing complete on cer- settlement Barnes, engineer Eastland, county by Pritchard, and Ed W. J. made directing county Houston, Sparks, and allowed of Jones, Frank Littler and J. contractor, judge be- to deliver road bonds Bros., Eastland, for and all of Grisham jurisdiction competent subject-matter, ing passed court of appellee. haying jurisdiction of under Rey. Const, 2351, art. § and St. art. conclusive, fraud COOMBES, Special unless vitiated § East- Chief Justice. clearly pleaded proved. and county judgment and sued recovered against Davisson, contractor, G. road and A. court’s or- 9. Counties <3=»57—Commissioners’ R, county judge, jointly and sev- jurisdiction cannot bе attacked ders within its erally, against $388,575.50, for the sum of absence of on Young, 8). jointly (Const, Joe Burkett D. art. and Sam § Const, severally 8, gives district court with said R. on his offi- Starnes § While appellate county judge, over commissioners’ cial bond as such for jurisdiction, courts, their latter’s orders within county against favor of Eastland discharging accepting public roads, costs; judgment for from which delivery tractor, directing of road bonds Davisson, Starnes, Burkett, Young prose- subject ap- him, attack, not whether to peal on appeal. this cuted also de- by county not in suit for sums accounted clared void and canceled certain orders of contract. contractоr’s breaches of for and commissioners’ court Highways <3^»I13(4) in commis- —Fraud Certain members of the court' commissioners’ roads, accepting dis- court’s sioners’ charging orders sued, and their bondsmen were also delivery contractor, favor. resulted jury. him held for bonds to predicated The suit was on certain items Fraud in commissioners’ orders of paid out for the account accepting public roads, discharging con- court tractor," allowing engineer’s recting of the contractor not to have been estimates, and di- taken into account in the county judge settlement between to deliver bonds to county’s jury, contractor, the tain supplemental hеld contractor sums not accounted for tractor construction of roads cer- and with con- settlement original breaches of an breaches of contract for latter’s contract between the purchase bonds. contractors for the construc- system tion of a county roads in Eastland <S==>I33(1) to instruct 11. Trial —Refusal purchase the contractors erroneous not to consider counsel’s statement argument as to court’s instruction and find- and accrued interest of Eastland coun- ing held error. ty’s issue, amounting $4,320,- road bond county’s not action for sums accounted purchase which contract of al- for in settlement with road contractor and for leged was breached to the extent of the items breaches of contract for construction latter’s for, $36,388.40, sued and an item ‍‌‌​‌‌​​​​‌‌‌​​​​​​​‌​​‌​​​​‌‌‌​​‌‌​‌​​‌​‌‌‌​‌​​‌‍of al- purchase bonds, of roads and court’s refusal lowed the commissioners’ court as a credit jury not instruct to consider erroneous state- to ment Sales, Legal, “Matters of Bond etc.” closing plaintiff’s counsel in The days dated the contracts were 9th and 15th instructed them that contractor and June, 1920, and were between the broke contract guilty found that defendants were Fleming-Stitzer of fraud held error. Road-Build- ing Company, partnership composed of cer- Pleading <§=>290(3) Allegation, not denied — Davisson, tain and said G. A. oath, defendants under July 5, 1921, on which contracts were taken undertaking tak'en as held fraudulent with the Davisson consent of the true. commissioners’ court. contractor and by jury, and, tried an- on judge for in set- for sums unaccounted special submitted, latter’s breaches swers to issues contractor and tlement pur- of roads and for construction rendered as above indicated. part- plaintiff’s bonds, chase Seasonably form, in due Davisson nership fraudulent un- defendants between presented pleas in abatement and and in bar arising alleged-spoils profits dertaking from plaintiff’s which the not denied true because be taken should overruled. first heard and oath; purpose of suit not whether for review is the action partners. them liable to hold Digests Key-Numbered topic and KEY-NUMBER eases see <®=»For REPORTER, 2d SERIES SOUTH recoverable, recoverable, pleas these are because of the court in provision contract, alleged some error. pleadings both suits to be breached. evidence one December, day the items Three of recovered the 12th case, $13,049.50, one one Eastland court, Ninety-First county, $14,000, $36,388.49, district, one for Eastland alleged Fleming-Stitzer styled Road-Building failure of Eastland to receive Eastland Company, in for in which credit said items the settlement of No. resulting principal defendant' the contractors’ account with in to A. was the G. Davisson par- obligation primarily each other instance of the contractors’ and all and made liable pay secondarily full there- value for the he liable bonds which ties sued made motion venue, agreed purchase. change in, which, of items of dam- on age complained of court of con- instant case was transferred Stephens county, district, alleged and was cerned the failure contractor Nintieth perform obligations to in roads in terial to be on the of said contract thereafter tried in said latter 9th respect resulting constructing day January, 1926, a to the manner of of appealed, defendants, plaintiff ma- ment said amended and and “the character of upon plaintiff’s second used and work to be done. January 22, 17, pleas petition, original action of the court in April present vari- 1925. The 1925, suit was filed bar is assailed assignments propositions Eighty-Eighth court of ous of error and in the district plain- thereunder, setting up county, laid Eastland and on went to trial contention damage original petition pleaded filed that the elements of tiff’s first May 7, 1926, amended May 10, began on two suits The trial accrued as the result of (cid:127) contract, abatement, breach of the same and on the accrued filing suit, returned on the former its verdict the merits damage day May, 1926, that all of said of elements consti- 28th itself was rendered on the 4th 1926, appel- a day June, tuted cause of action which split prosecute aggregate lee plaintiff was entitled favor for an separately by separate suits, $388,575.50 and this con- total of A. Davisson G. tention jointly in bar as severally, as in well abate- and R. against Young, instant Joe Burkett and sure- Sam D. rendering erred in awarding ties on bond R. Starnes official of C. recovery $5,000. Eastland in the instant suit. alleged In both suits alleged: In the instant days suit it June, 1920, on the 9th 15th en- original supplemental tered into an days “That on June, 1920, the 9th and 15th Fleming-Stitzer Road-Building plaintiff tract original with entered into an contract and a supplemental contract, constituting Company, by buy agreed one whole latter Fleming-Stitzer contract Company, Road-Building with , pay cash, par in- at and accrued partnership composed R.W. terest, $4,200,000 bonds, Eastland Fleming, Stitzer, Gregg, Frank E. Saunders system public construct Davisson, whereby and G. A. the said Road- county, roads in Eastland the Building Companyagreed system to construct a plans terms said contract certain public highways of roads or coun- Eastland ty, specifications county engi- purchase plaintiff’s on file with and to bond issue and pay par therefor amounting of said bonds neer of Eastland principal $4,320,000.” sum of about alleged In each suit it that defеndants pay breached said contract and failed to appellee’s petition In on which trial was par and accrued interest for said bonds. Stephens county, district court of alleged, In suit the former original the terms of the contract dated June original petition, defendants had failed between Eastland ancf Flem- pay Eastland in full for said bonds ing-Stitzer Road-Building Company, co- to the extent of and had failed to partnership composed Davisson, of G. A. par $36,388.49 pay the extent of of said road bonds of the to- for 495 Gregg, Fleming, Saunders R.W. Frank par $1,- value of Stitzer, alleged E. system to be “to construct a $11,- sought each, to recover 000 500 and further county” roads Eastland paid been contractors to have accept per- “to and formed said roads the for all work and material siding, been for railroad when none had built. and furnished the construction of By original petition, on its second amended bonds trial, all of the items it went to which eliminated to issue in had therefor, authorized $64,100. except the item of full receive the par bonds, together was had for In the value $36,388.49, the same item interest thereon.” The terms of the accrued supplemental petition original recovered date June pay buy different ele- were therein to “to former suit. In cash, damages alleged, inter- at value accrued ments or items but are-: v. EASTLAND COUNTY est, $4,320,000 Clark, road bonds which Cohen 44 Mont. 119 P. to issue for was authorized rule is thus stated: the. alleged: construction.” then elementary “It is an rule of law that: claims, payable supplemental ‘Where several times, “That said contract and different contract, arise out of the same hereinbefore referred to as Exhibits brought liability B, accrues; respectively, as each A constitute one if suit is not agreement to the construction of a until more than one has action.’ between ” due, all must system be sued for under one roads Tex.” Hawley, Whitaker v. Kan. 1 P. reading ques- 508, A careful contracts it is held: think, interpretation tion, we sustains “At eaсh successive breach of a contract the was, placed appellee thereon that there cause of action on such contract will be en- fact, parties. larged, but one contract between the and no new cause of action be cre- will * * * generally ated. The words, courts of the construe intention existing single all breaches of a contract as con- parties improvement aggregate of all (cid:127) stituting aggregate only general in the one con- called for in work as general contract, breach of hensive compre- one one performed by tract be done and the contrac- infringement comprehensive pri- of one tor, paid contract, would be the contractor mary right.” provided work so done For cases to the same effect see buy pay Hallack East- the contractor would Gagnon, App. 360, v. 70; 4 Colo. Wil par 36 P. land and accrued interest liams-Abbott Electric county’s Co. v. Model Electric manner road bonds Co., Iowa, 665, 134 112 complete N. W. 13 out, L. R. therein set performance and that full and (N. S.) both, Belfy, A. 323, Burritt v. parties 47 Conn. entire con- Rep. 79; States, 36 Am. contemplated. Baird v. United tract was 96 U. S. 24 L. Ed. 703. In both the former and instant re- single [1] That a cause covery of action cannot be of the East- value split and suits maintained as to different alleged been de- to have bonds going up items appears to make appellant Davisson, pur- cause of livered to ported county established.by weight to be well settlement for sums due authority Wellington which, well reason. contract, and for under the Railroad Committee et al. alleged v. et Crawford each instance it was county that Eastland al. Com. 216 S. W. Dixon Failure on receive full value. Watson, App. 412, v. 52 Tex. Civ. 115 S. W. pay par and ac- Davisson value 100; Mallory Co., v. Dawson Oil 32 Tex. crued the Eastland App. 294, 953; Craig Broocks, 74 W. S. bonds to his was attribu- App. 83, 60 Tex. Civ. 127 S. W. up Stephens table to the matters set [2] Some confusion to have existed county suit and the various items and de- early prior decisions as to whether a plaintiff’s petition faults instant set out pending parties between the same involv ease, prior all of which had occurred ing interposed by action, properly the same cause of when to the institution of either suit. Each suit plea, subsequent will abate a primary question involves the as to wheth- suit. But previpus whatever confusion that appellant er or not breached his con- ly existed; we think eliminated the later pay county par tract value and cases, especially by holding in the case accrued interest for the bonds he contracted Benson v. Fulmore 269 buy. opinion by a well-considered whether, to be determined is Judge Chapman, wherein it is stated: where several breaches of one entire “The prior trend of filing suit, authorities seems tract have occurred give to other suit a liberal construction to a of an- merged breaches become in one pending affecting the same action, indivisible ‍‌‌​‌‌​​​​‌‌‌​​​​​​​‌​​‌​​​​‌‌‌​​‌‌​‌​​‌​‌‌‌​‌​​‌‍cause or can each de- subject-matter to the end that the court in separate fault be treated as a ac- try (citing which the cause is first filed shall it” separate tion and suits for thereon approval general Cyc. with page 21). statement in 1 be maintained. Corpus Juris, page 1112, 1In said: general рrinciple is “It is a of the law pendency thing, of a suit for the same weight authority “The decided is to the ef- commonly said, as tion, the same cause of ac- that, brought fect if an action is not until more between the same in a court of contract, than one breach of the same or until competent jurisdiction, will abate a later suit.” more than one claim or installment is due there- under, all such breaches or claims or install- Long Long recent case ments constitute but one cause of action and find we the state- action, theory must be included in one be- ment: ing that while the different breaches or install- give separate ments rise to weight сauses of authority, action as however, “The and the with the due, yet occur or view, think, harmony which occur better we is in or become due before action is are common-lawdoctrine. merged ought consolidated into a that, cause of “It to be manifest in order to orderly action.” procedure, spirt maintain an S.W.(2d) —60 6 SOUTH entered cepted performed, quiring constructed said contract and expedient no evidence it was not the the case. think accord the adopting arise which and that leged known to have been plea before us items involved not arise and trial. judgment therefore not of the former bar the ruling is reaсhed holding n case of Sonnentheil v. sion the authorities Co., involved. Such hold think, clearly any, that there in the The ment was and appellee ly been commenced adversary involving should sustain a of tribunals one On The conclusions ^[7] [4-6] [3] It Kyle comity since, plea 253 S. adjudicating in abatement before of the additional derivative pretermits the merits adjudicated cases, An the cause and in the case of as a full and Besides, the properly Applying latter review Land principles adjudication Davisson order, for consideration. if the court erred that in another Instead contrary. appellee. W. in the former known, properly overruled for the reason litigants that plea contended in accordance with the abatement, seems to equal jurisdiction, may on December involved in final. It was case Co. of the contract should at all times discloses that commissioners’ court of East- at the time of procedure may proper Court an above the through, should be in abatement. a referred additional plea in the this et al. and hence reached here announced. discussion contractor had been institutes a the full complete compliance filed in Eastland should be one not arise plans court of This feature seems principles below dismissing Plaintiff’s have been that the of its parties is ease, cases quoted, the conclusion court. Moody require the contract between the on another trial true, v. Texas however, appear court erred the trial remanded so as suit, with reference McFaddin, parties defendant 29, 1922, finding certain suggested in oral plea there cited extent of the al not inconsistent rights as No. equal jurisdiction consideration.” liability hearing roads had been when et of the contract we think not its and were ac specifications, upon plea in a reversal announced and thereafter suit was covering secondary privilege This petition, al., exist between offеred that point liability, Rice Land institution court, protection sustaining questions as seems terms of a suit the latter bar another plea conclu apply. Wiess abate S. W. fully over time- does was was not not not the we thé re- to,' .issue: such best faith. interest they land faith, finding it would answer missioners’ court were not to determine find What whether or in commissioners’ court in was negative, fraud is not of Eastland before were as follows: faith Plaintiff below also submitted der No. 37 was vitiated der No. 37 was the best interest of Eastland der No. county acting highway department county liver 495 Eastland tor at below cause charge the county acting for the best interest of Eastland denomination ber, dirеcting ther the said court as certain engineer during September, said here ing should If Two If it “Was the commissioners’court of Eastland And: “Was the commissioners’court of Eastland passing No. not not also 1921,and the two court believed framed, were relevant, liability. then this jury violative of you?” From state in answer to the second questions and in (a) may findings. 3, showing estimates made acting appear the contractor and his they passed and accrued Whether conflict, the order. relieved and doing,so. answered the not the in evidence before auditor October, be said that contractor therewith. determined. R. and were not county findings for what good of said the court as to order No. 36 and further that order No. 3 was duly first for the best Another order finding that with certain the months of manner in also vitiated $1,000 each, were In either event other in difficult, if January, 1922, the Constitution and laws faith when did find with then no court acted allowed question were November, the second order No. If the they presented not the interest, jury discharged jury were first passing construed these two acting finding fraud. The issues road bonds of the affirmative. good county served; fraud is affirmed believed to interest which the issues conflict with the acting the defendants. found question jury they passed auditor you?” exceptions not acting prove said court and best settlement believed that July, August, judgе, faith of the question. the issue for the best the contrac- and Decem- in the first directed fraud. impossible, and in referred to good in evidence entered county found bondsmen from-fur- together, interests Plaintiff findings that void adjudg- be court East- faith good com- good civil Or- (b) or- be- or- de- charge, counsel for ceptions of counsel for argument breached their contract with the Fleming-Stitzer Road-Building Company had framed as definitely ulently passed. submitted as that Upon that the court had found that the defendants fraud because mination of ford v. the 268 8. W. 999. opinion, 239, Davis 513; missioners’ subject Polk Roebuck lation such volved pellate courts, appeal, our conclusive tion. As the contractor and power diction of the certain ers’ court dited the accounts between the vides the Eastland diction over by or as “ The record “That the court had instructed them that the matters, [11] Error ^[10] making * “Audit [9] While it is From the Section ^[8] competent this sufficiency Constitution, gives guilty of fraud.” * v. Callaghan jurisdiction Cannon Article that the commissioners’court— another of Eastland making conferred he stated to and direct their this Moseley and it seems * powers Constitution and lie laws of to attack to said were becomes determine faith of the and settle before the the statement shown in the bill be hereafter the orders this suit. and had shall exercise such that the is as follows: suit is not proved. is also further 5, 18, foregoing, not so directed jurisdiction, plaintiff below in the provision comity and duties of § v. 837; argument jury, (Tex. true McComb unnecessary the Salliway, vitiated passed issue was if assigned to before shows of our The orders there jury. to matters commissioners’ court prescribed.” the business, Jeff could Com. App.) payment.” evidence, R. S. Civ. jury: accounts the court issue should making the will be by law when it au- absence shows that passed S. Davis order was that, (Tex. Civ. him Constitution, article decide 5 1925,prescribing powers the exercise the commission- commissioners’ proper orders in Tex. commissioners’ for the deter nature jury, order. exercising at the county, required bill оf ex county and like as in is conferred they were pass 223 W. 184 S. W. of fraud. Civ. 5, 8,§ establish remarks no are not without closing) closing court’s in our fraud clearly issues point. while Brad of an time legis juris- v. EASTLAND ques- App. state, juris- com and apparently pro ap so to of v. court was when that order was the court with filed lee. remanded. of or the the sary the same under oath. put the the arising judge is made as one of the elements of fraud charged against them, Starnes relation would have to be made or be taken as: where denial is not a suit confessed. But the not denied Davisson and Starnes liable as tion, tiff that v. 765; 199 S. Corder etc., Railway will cussion deem it have been in the instructed the whether the any guage the statement counsel clusions from added to to do. requested exceptions, Appellants The. In view of the error [12] In Blackwell given by general foregoing questions, in issue consider fraudulent 529; Security rules motions for defendants were not oral likely was said should not be taken as Davis v. was in cross-assignments urged judgment is fraudulent conduct set out in the decisions, pass upon from the (Tex. unnecessary in violation of his trust as before the commissioners’ or court- Davisson and Starnes were On Motion for COUNTY requested add that the App.) 142 passing upon view of another charge. governing is under the the court to instruct the qualification this denial sufficiently cоunsel for not occur on propositions court below in appellee same, reading seeking charge partnership quoted. Co. v. defendants under oath. This it, Hill the undertaking assignment. disposition court and as this or similar error respectively, appellee, Western them under oath and the court did not rehearing. pleaded by App.) alleged spoils, to do so or not. We think which the court declined We fail to find allegations Union Ins. Co. v. S. W. 49. reversed and the cause- entered. The discussioni to enter into further dis Com. from the of the court matters of this nature assails the to hold the defendants remaining assignments, disregard Harp (Tex. original opinion, discussed and dеfined appellant objected The court should have (2d) Rehearing. impression it becomes unneces- 249 S. W. urged Rushing order No. with Davisson required drew his own con another Indemnity approving we have made of' particular is, trial, may explanation See the written Among true, the statement partnership, holding defendants, fraud, 283 S. W. and hence- Panhandle, warranting appellants. Civ. that, trial, the 37, jury because Spreen county- profits, appel- items, charge v.Co. plain Alsop have- App.) deny and, peti the- and: Bell give lan of' bill in, SOUTH Bryant-Link point. Company In the Action not reach that did Collins, Bowers, opinion reached that another T. M. the conclusion was E. plаintiffs, and another. From a court helow erred appeal. a reversal defendants named necessitated Affirmed. This abatement. the concluded, Having this court other so case. Scarborough Wilson, ap- Abilene, go into the discussion did propositions pellants. matters involved than certain Wilson, Spur, appellees. D.W. procedure might trial. another RANDOLPH, ap- instituted, J. This suit was appellants that of motion county by in the district court Dickens pellee are overruled. Bryant-Link Company Spur National Mitchell, Bank, plaintiffs, against W. C. Collins, M. E. T. Bowers. From a plaintiffs, in favor of defend- et al. BRYANT-LINK CO. et al. v. BOWERS appealed. ants Collins Bowers have 3036.) (No. plaintiffs suit was instituted Amarillo. of Texas. Court of on notes recover executed Mitchell- 16, May plaintiffs, payable county, in Dickens and for mortgage the foreclosure of liens on chattel May 30, 1928. Rehearing Denied crop rents, mortgages crops Pleading con- given by <§=>! involves plaintiffs 11—Where suit to secure Mitchell to necessary venue, version, it is not sustain of the said notes. Collins convincing that evidence be clear Bowers be were made occur; evi- did sufficient (925, conversion it cause, wrongfully alleged, it con 1995, (Rev. art. raises issue St. dence up crops rents verted to own use the 9). subd. liens, plaintiffs mortgage on which had their conver- suit involves foundation of Where рlace in Dickens and that the conversion took county. sion, Rev. St. sustain venue Bryant- mortgage The note necessary 1995, 9, 1925, is ‍‌‌​‌‌​​​​‌‌‌​​​​​​​‌​​‌​​​​‌‌‌​​‌‌​‌​​‌​‌‌‌​‌​​‌‍not subd. art. May 17, Company Link were executed convincing conver- evidence to clear mortgage necessary record occur, sion evidence tends to mortgage issue. raise The note and same date. Spur June National Bank were executed property Is Venue —Conversion mortgage filed for record "trespass” meaning of statute within venue July 2, 1926, in resi Mitchell’s (Rev. 9). subd. art. St. ; being alleged that at time dence “trespass” property with- Conversion of mortgages Mitchell of the notes and execution was Tex., meaning subd. of Rev. St. Crosby farm owner relating to venue. to the theretofore rented which he had definitions, see [Ed. Words Note.—For other year defendant Collins Series, Phrases, Tres- and pass.] and Second First reserving himself one-third rental the feed and crops, as one-fourth the cotton seeking (I) <§=>48 of action 3. Action —Causes rent, had, the mort and which Mitchell recovery gage foreclosure mort- on notes and for aforesaid, assigned conveyed gages to the joined suit for con- be liens security payment plaintiffs, said mortgaged property. version of whereby notes, crops and said rents seeking on notes of action Causes realty all interest of severed from the mortgage liens could and for foreclosure plaintiffs to secure joined Mitchell therein vested properly for conversion with suit mortgaged property It was further transferee ven- said notes. the alleged notes, Bowers, tenant. dor’s lien Collins knowledge of mort full said each Crops growing crops <§=>5 —Where plaintiffs’ gages thereunder, right and of con go severed, do not with sale land. spired plaintiffs crops to defraud of said Crops may segregated severed, rents to convert own same to their use assignable personalty, and, in event and, benefit, pursuance thereof, and gather go severance, of such do not with a sale crоp, amounting cotton said to about of land. bales, transported all or thereof to 6) purchaser (2, 5. Vendor —.Trans- Spur, county, Tex., Dickens sell and did then and feree vendor’s lien notes owner of and not of there and convert same to own use purchase-money notes lien benefit, plaintiffs’ damage title land. money paid by and rents said Collins transferred lien Where vendor vendor’si Bowers; the claim Bowers defendant, defendant was notes to owner crops have rents could purchase-money lien and not owner of notes and purchased having reason of his the land at title.- August 3, 1926, sale on or about foreclosure Court, long mortgages District Dickens after the Coun- execution and record Newton, Judge. ty; assignment Isaac O. and the severance and Key-Numbered Digests topic and cases see same KEY-NUMBER ®s>For

Case Details

Case Name: Davisson v. Eastland County

Court Name: Court of Appeals of Texas

Date Published: Dec 30, 1927

Citation: 6 S.W.2d 782

Docket Number: No. 283.

Court Abbreviation: Tex. App.