*1
515
tent not an innocent
poration had no
letters
in the ease.
had notice. He also recovered
having
several
propositions
paid
paid
pellee
tween
there are facts
stitution of a suit
pleading
suit.
never
paramount
institution of the
any
been removed
pellee,
With the facts we have
to ascertain that
poration,
assignment
from the
Wellborn,
use
pleaded
roborate
force to the letter
St.
ice of
es,
ney
antagonistic
Valley
taxes,
expenditures,
Even on his own
occupied
efforts that
ments out of
trol of
case,
One who
fied that
the
terests
twentieth
[17] The
[16] There is no merit
[15]
considered.
complaint because of
because
Rep.
former the
corporation
loyalty
of such
cause
ease,
out for
on
because
his client.
expended.
They
parties having
Appellee
arise
question
Irr. Co.
and all clouds
been made
propositions,
do
Moroney,
858.
client,
such confidential
by appellants
his
which was under the
-fiduciary
pays
to demand the utmost
conveyed to his client whose in-
Moroney
in this
assignment,
however,
client,
legal
twenty-first assignment
had been
to his interests.
were used
from fraudulent
or statement.
have
inadmissible,
to the interests of the
Tex.
land
relation
testimony.
complaint,
error,
Home
even
Moroney
had no
strictest
of reimbursement
v.
were out
legitimate purpose.
had realized more
title
to which
his
and will not tolerate
case.
Davis,
equities,
530,
money,
in furtherance of
should not
suit,
Appellants
is
showing
circumstances which
relations between
required
require
and
though they
was his
attorney
recover it
no
very general,
Investment
bearing on the issues
employed
to obtain
Kendall
on
purchaser.
12 S. W.
attorney
by him
is
devotion
expenses were not
sustain
connection
and without
and he is
due to J. 0. said R. carry Coyote ranch, ’defendants, a debt on the trustee way; also, conveying in pay penses lands the same deed of approximating *3 living per 284,000 ex- month $335 Mrs. Fant acres. Coyote made and (5) until the sales should in said instrument That specifically but, described, effected. afterwards defendants settlement ranch was not (9) all describing That caused lands, after the follow- ranch, properties, except Coyote ing provision of said all inserted: “And tracts aforesaid, and to be sold under their liens of of said counties above-mentioned bought per Cameron, Hidalgo, acre for Starr, Zapata, in at cents wheth- and horses, per specifically and $1 land and which was head for cattle er named and herein described not, of of one-tenth the value about' or or and owned me claimed to thereupon properties, by me, belonging and defendants me, said owned and according properties grantor herein, Fant, comprising said in trust to' held D. R. and January 7, any part agreement of the terms 1904; but, their of what known and of as the Fant selling properties a sufficient amount Ranch in the above- Santa Rosa hereby satisfy counties, thereof to them, the Fant indebtedness and mentioned are herein attorney’s fees, conveyed, interests, together rights, interest, with all and leasehold expenses handling property, by me, Fant, of and held D. R. and refused mainder, contracts said any or turn over the account for of the above-described lands are also conveyed; and said it of intention properties convey own as the claimed the their strument all of the lands of D,. grantor herein, Fant, final decree trust was established R. in the said coun- said court, Cameron, Hidalgo, Zapa- Starr, of cause No. of and ties ta, D. Fant and all of D. on June wherein R. as well as the interest said Fant, simple leasehold, D. Fant were and Sullivan R. or of the said uated whether in fee Lucie plaintiffs’ any right by & nature of Co. defendants. The character or kind held 19,375 was then D. R. said cause No. Fant to and land sit- demand aforesaid, pléaded, of defendants said counties com- and answer and agreement they repudiated prising fifty leagues 220,000 in all which and claimed said about own, land, and their acres of more or less.” (6) May 13, trial of it in of was further That on about agreement $63,000 was estab- said cause said trust lished, order to secure extension of indebtedness, allowed indebtedness D. R. an- said Fant executed mor,e leaving $600,000, amount of other deed of trust to J. C. Sullivan as the - 97,000 conveying $65,S41 defendants, acres of about trustee for lands balance and the same Co., preceding & D. Sullivan hands of in the deed of and land provision covering was awarded all which said decree same blanket separate property. Hidalgo as her lands and other counties. although (7) having That, (10) bound the trust default That been made in the up carry payment July 1903, agreement the debt take interest due against Coy- on the vendor’s lien notes ote J. C. and neglect- ranch, ranch, & failed and D. Co. Russells filed suit Nueces Sullivan so, debt, the suit said for their do for foreclosure ed to Judgment, go their for foreclosure lien. Russells having repeatedly (S) ranch to sold under order the said That notified bought by $260,000 sale, said at which sale it D. Sullivan that his defendant note $15,000. February would said be extended on Russells began negotiating (11) That, D. failure Sullivan after the 186,- for the Fant debt sale of Santa Rosa & Co. to take per January acre, acres foreclosure $2.50 000 7, ranch and its sale under applied aforesaid, to the Rus- to effect such sale. That D. R. Fant they prior defendants, on or about said last-named said date redeem sells to to through Sr., agreed agent, Graves, June, 1905, Dr. that for the sum Amos convey ranch to $60,000 entered an oral said into would Fant, by agreed, which defendants if said of D. the use benefit Ermi Fant for agreed negotiations Drought & Fant would cease his H. P. per acre, said ranch. That $2.50 sale of said ranch at loan to the been, public & Go. sell would have Sullivan of the sale all so made properties parties, but for the inter- covered out of the carried Co., mortgages & them, chattel trust and defendants ference who actions knowledge properties, having of all the trans- in the then full sell mentioned, it became sufficient amount thereof to above arrangement Co., together apparent was about to D. Sullivan & indebtedness through agent, expense consummated, handling properties with and 10 cent, J, per Drought P. J. G. notified H. attor- C. ney’s fee, claimed a lien on and return the remainder Ithat (Tex, 152 SOUTHWESTERN REPORTER Feb- virtue of their of trust dated became and was the ruary 24, 1903, Fant, covering all from R. these defendants at all claim and times to Hidalgo lands and coun- interest lands assert the existence of of trust or said deed ty, superior mortgage plain- in whole that said lien would be the lands mentioned part proposed protection, trust deeds tiffs’ for their own Drought Co., that, if favor H. P. protection for the benefit Lucie A. Fant. $60,- H. P. & Go. the loan of That, if said statements were it be true that H. part would lose a substantial Drought Co., made to were litiga- money, involved become good faith, without utmost tion. any Fant, towards Ermi and D. R. malice That, representations, (12) because of said desire to without intention or H. P. over the Co. refused injure parties, but said statements were *4 agreement $60,000,and canceled. declared the protection so the interest of of representations (13) That said D. Sulli- of properties these the and defendants said Drought van & to H. P. & Co. were whol- Co. protection of said Lucie interests ly false, in that whatever interest Fant, rights A. which interests and subsisted Coyote any, D. if Sullivan up May 31, 1907, when, final t'o decree provision & Co. held in virtue the blanket of Fant and suit between Lucie A. these de- 24, February deed dated of fendants, debts due defendants these by them, 1903, Fant, D. held from R. were discharged, D. R. and Fant were satisfied 7, January agreement said of under their agreement and said trust established and Fants, grossly and were in trust for the (3) pleaded settled. limitation of That Defendants statutes of fraudulent, in were made for the years. one, two, (4) and four acquiring purpose ranch for them- plaintiffs should if not recover because paying anything therefor over selves and above the vendor’s lien sells, they binding without had a contract with H. held the Rus- Drought Co., alleged, loan, as to make said malicious, intensely in that perform and were said & Co. refused prevent- intent of were made contract, their voluntarily Ermi Fant and Fant ranch. from Fant contract, released them from said damages alleged $274,- discharged were thereby The actual and these defendants plaintiffs 982.88, sued for damáges grow- and also liability from ing to them for September exemplary damages. alleged On (5) slander of out of title. plea abatement, alleging plaintiffs defendants that the That should not recover because adjudi- was action asserted herein cause res action is barred cause of contract, and did cata, a" a tort unconnected not survive heirs in this: That under deeds of trust and representatives legal confirmatory D. Fant R. and Lucie original plaintiffs, died who had all the to defendants held bringing Coyote suit. The defend- had in since the ants on that D. R. and January 2, 1912, first ranch, and, filed their if it be true held same original answer, pleaded Fant, and amended there A. then she trust for Lucie action, misjoinder Coyote in right subject of causes of ranch was title to attempting rights plaintiffs for for sue were alleged as That defendants’ creditors. un- existed, agreement, trust the of Lucie if it der said it was the breach Fant, duty A. an action on tort. and also to sue the benefit defendants off debt due They title, Coyote Russells, and turn for slander the to Mrs. Fant after their claim creditors over ranch pleaded be abated because that the suit as parties jointly attempt discharged. 19,- two to sue it was an for an oral had 375 That cause No. been title to land. Then slander of the R. and Lucie A. Fant D. sued these special exceptions, agreement, demurrer and establish said trust followed general defendants to and following allegations: denial, alleged breach, and the for its recover authority Special up part O. to (1) of J.. denial of their cause action the set duty as alleged declaration make defendants off Sullivan these Rus- plaintiffs ought (2) acquire Coyote debt, That and hold H. P. not posed sell sup- permitted Fant, to maintain their to be ranch for said the breach set duty, on or of action because cause these defendants of said gave February 24, damages D. defend- R. could have recovered and from these defendants for slander of was decided therein mortgage upon lands in contro- for said ants a breach and lands, title, any. versy and that as while if well That said issue authority to make the said Sullivan Lucie A. Fant in J. C. statement gage cause, had a the defendants mort- and no which had never said lands these therein breach of by defendants yet effect, wrongful satisfied, acts, in full force but was thereof, That if was true. there was said Lucie A. said statement Fant and plaintiffs between a- Lucie A. defendants R. Fant and the who trust D. assert with them as hold and Fant, plaintiffs, privity title to June, were their heirs defendants D. creditors are con- as well as- trustee Lucie A. cluded and barred February plaintiffs recovering (6) D. to secure That herein. agree- payment large & Co. in- the ey owing of mon- óf a sum because not be to recover K. Fant them D. Fant. This deed between the Bussells ment descriptions lands," specific to to contained the of addition to the title Ermi Fant to take copied par- general clause with intent the delay, hinder, agraph allegations of our statement of the creditors and defraud the plaintiffs’ petition. July 29, 1902, especially On said D. bought B. Fant Sullivan, composing firm of J. O. and W. C. D. Sullivan & Co. grants “Coyote two the Banch,” of land known grantors retaining a plea exceptions vendor’s and all of abatement payment $37,309.58 lien secure were overruled. case tried before purchase money. February 24, jury, and, plaintiffs On had introduced May 13, 1903, D. B. Fant deeds evidence, executed filed a defendants motion of trust to J. behalf, O. Sullivan trustee an instructed verdict in their was overruled. The the turned. Defendants then filed Sullivan & extension secure the case submitted debts due Co. These instru- upon special Sullivan & issues, and verdict prepared by ments were asking motion copied verdict, he clause contained judgment, given February 24, deed of granted. parties which was Both filed mo- At time he did not know that tion for new trial. That of *5 acquired by ranch had been the sirice execution defendants, contested overruled was by in- court, first deed of and would be the of defendants was and that presented cluded under the clause. Fant failed never the died with to court and pay July to the interest appealed. due the Bussells on the term. Plaintiffs 29, whereupon 1903, September latter by the on jury, verdict, found that J. 21, 1903, June, 1905, sued for their debt for fore- C. and D. B. to Bussell offered lien, convey daughter, closure him, but did not make Fant to to party thereafter, Ermi, Sullivan & Co. a to the suit. within a reasonable time January 7, Co., property '“Coyote 1904, Banch,” About & the the Sullivan called through agent, by Graves, Dr. Amos en- release the balance of the against Fant, payment tered into with on the Bussells n $60,000; by Drought public P. which the Sullivans were that H. have to sell at property by money sale covered Ermi and D. B. loaned the Fant to Fant mortgages pay pur- trust and chattel from to at with to the Bussells the ¡ Sullivans, property money ranch, then to chase for j j sales, by Drought such of and sell a sufficient amount there- made statement to J. C. Sullivan pay them, 16, 1905, concerning to indebtedness to- on on June claim cent, gether per 10 J. Co.; with to C. Sullivan said ranch & that when D. Sullivan attorney’s fee, and return the remainder of J. C. Sullivan made Lucie of D. B. Drought acting representative the A. wife was he per authority Fant, living expenses Mrs. Fant month $335 of and from D. Sullivan & also with Co.; that, sales when D. en- should be Sullivan Co. were | Coyote deavoring J. ranch and a settlement effected. Sul- ten- made C. secure money dering bringing April May, 1904, the Russells or certain livan as trustee therefor, horses, the suit were endeav- lands the Fant cattle per- oring counties, same for themselves secure the in several situated Fant; sonally, being Co., not in for Mrs. D. Sullivan bid endeavoring per per D. B. was to secure $1 50 cents acre and stock at Coyote by putting head, debtedness, in his ranch the title on which sums were credited purpose daughter leaving very large name Ermi’s for the still sum levying unpaid. preventing D. the Santa Sullivan from Bosa deed judgments they May 30, 1904, on it certain under was deed dated (cid:127) him; cash mar- offered in reasonable made said trustee evidence. Coyote said ranch June was never sold on ket value per acre, trial was He that at the and at the time of the testified time of Sullivan. $2 $8 per acre; J. that the statement made he was aware that Fant the foreclosure owned other brought Drought property; knowledge to H. on June 16. C. maliciously made, Evidently by and made afterwards. to him prevent- Coyote ap- purpose the intent and with meant ranch. this he the ing money borrowing August; pears with that suit ranch; Coyote for the | in the district court Travis which to ' grants composing should be awarded recover two state to amount Coyote May 4, 1904,judgment exemplary damages. ranch. On suit, questions may in the Bussell raised be was rendered foreclosure In order question briefly understood, as to what arose w*esummarize the and the better regard Coyote trial: done facts established material Bussells. J. O. ranch from the was made D. B. Fant of trust A deed SOUTHWESTERN REPORTER Pant, appertaining title, ex- June iMrs. cluded Lucie wrote pressing opinion satisfy' would Sullivans state would if themseives hay- not, suit, asking acquired any right lose the whether to redeem the ing regard ease, present property, they right. status of the had lost such On June Drought she wished D. to take Sullivan Oo. 14th & Oo. wrote Scott had not $52,232.80. abstracts, & Ward loan of On June received and had wired for same. 30, 1904, Ogden Messrs. & Brooks wrote In the meantime deeds of trust had been Pant, referring prepared signed by J. letter Pant, covering O. Sullivan Ermi her, and, stating they ab- ranch, given had examined and recorded on 8th. June Sullivan, They stract J. of title furnished C. to secure the two notes of against investing $48,000 advised her Ermi Pant and R.D. Pant for each. purchase ranch. On the Russells was to be made July county, veying Hidalgo Closner, Pant, John sheriff of ownership to Ermi but the real deed to the Russells con- executed land was to be in R. Pant. C. Sul- ranch for consideration livan 16th, testified that about June 15th or $15,000; sale through Stayton Edwards, either tele- judgment May 6, 1904. On October phone letter, he learned that the deeds of 1904, D. R. Pant and A. Pant executed trust had been recorded or were about to be confirming Sullivan & aCo. deed them recorded, and, as at was on the of his eve purchased by in the titles to the lands théni going Corpus Christi to make a tender to conveying under the deeds of and also Coy- Russells of the amount due them on the lands, including Cbyote ranch. telephoned Drought ote Mr. purpose This deed was of en- report if asked there truth abling advantageous the Sullivans effect contemplating lending that he was Pant the agree- sales of the under the trust money, replied that it was true. finally ment. The state won Later and met on the stairs lead- court, judg- the defendants lower office, to his and he Mm asked whether *6 appellate ment affirmed in the courts. The loan, Drought he intended to make paid represent Sullivans Scott fee to $400 would, grounds said he and asked on what courts, higher in them said also in case land, the Sullivan made Sullivans claimed and then J. C. paid Ogden & Brooks their fee for ex- plain- set in the statement out amining appears title. to letter petition, and tiffs’ based. suit is this Drought R.G. Scott dated June day Corpus went On next he that J. Sullivan had made an O. effort to Christi, and tendered to the Russells the get postponed the Russell foreclosure sale $48,018.96, they sum of refused to ac- the state suit could be heard from. cept money, demanding $55,643. by deposition testified Scott asked he Judge wanted, testified Russell why J. C. Sullivan foreclosure he debt, $7,000 in to his addition some to cover pay did not off the balance the Russell he had contracted to what de- judgment, Coy- and clear his title to the fense of the state suit and costs of court. ranch, ote and Sullivan said the land was in Drought 16th Co. On June wrote Scott litigation, they did care to take the Pant, and stating in on June 17th both letters wrote losing pending chance of at it in the suit then communicated J. matters C. but, 'Austin, out, if the state lost he Sullivan, and declined to make the loan. money would in tender the settlement of the suggest- the letter to Scott stated judgment. After the termination of liti- arrange- the. possibly toed J. Sullivan that C. gation state, began nego- D. R. Pant ment title with could be made Pant which the Drought tiations H. & Co. for the might quieted put shape and Pant in purpose purchase borrowing $60,000 with which to it, hold to borrow on but Sullivan could Russells, ranch from the arrangement hope no such out in D. and decided to the meantime Sullivan & Co. also be reached. J. C. Sullivan denied that this from, redeem the Rus- occurred in the conversation. These letters sells, claiming junior speak lienhold- as if one conversation had taken -pay claim, off place ers to hold the land under confirmatory the Russell and thus J. Sullivan and Drought,, between O. trust and but the latter also testified the first phone deed. was conversation over the Drought leading The firm of H. P. & Co. was com- the stairs to Sullivan’s second on posed solely Drought. May Pant, Drought of H. P. Prom. office. In the letter 31, 1905, correspond- they a brisk to June had stated that O. Sullivan said Drought Judge ence took between H. P. & Co. an to redeem the offer to Scott, attorney Coyote ranch, Russells, had and G. R. that Russell declined during Drought offer, ap- course which and wanted several thousand dol- they due, going prised fact lars more than was Sullivans had and, tender, if another asserted a claim to the land trust make deed of to they bring containing accepted, Drought suit to clause. they the abstract & Co. stated would have to be The letter’ also stated that as deem. brought everything litigation, date and in- down to to be involved desire letter to Fant pened purpose al is not shown. D. Sullivan testified it was as it was ten not think enough, ter to other felt it matter. H. P. was not authorized would amended dismissed because he had Both Co. and also J. C. Sullivan testified the state- ment made sufficient Sullivan & Co. tion with Mrs. trust her other deem said vans, except sold the trust Fant be, was that all turned the Sullivan April 1, 1906, same. On joined the February, of facts dates deed dated find and delivered to them. D. Sullivan in erty especially agreed lands under all of various sales made language: since the various sales made of shows the lands Sullivan v. Russell As shown obtain district court of Bexar opinion, the dismissed, any introduced *7 alleged members agreement, indebtedness; at the time. On October would be unwise to land, is over to Lucie and he would D. Sullivan & the petition, would any other judgment the amount herein, utterly original petition her offthe Russell indebtedness November expressly his for an “The September -, dates such indebtedness well excess in that ranch, Co. Co. of and would not assert attorneys, that Sullivan & of one of 60 indebtedness, aggregate correctly husband, pursuance Fant, expressly recognized mortgage were not but the date of such dismiss- a balance due of the latter to the sales sued D. Sullivan &Co. Weedy that the same was not to of the Sullivans had accounting. same, be, paid the lands stated to them Case, copied that stating under probably firm A. Fant the Russells for the the firm. stated and received a writ- acres to carry sum of asserting any Sullivan Co. benefit Co., 45,000 ranch in Live that has been sold idence thereof until about fails submitted uses the sales made testified case county, go filed in deposition the 1905. Nor do we first stated mortgages in this case or turned over the just also further comprehensive D. Sullivan the statement Tex. same until bought record lose the suit. establish No. after failed the In the first that of Lucie Lasater, $633,791.95, bought stating 4, 1905, land. which suit what show the that any, the should conversa- following 19,375 that his could be the mat- A. Russells acres that D. late as Fant. paying it was agreed disputed which Fire Ass’n by claim Sulli- prop- It is lowich Greenville paid hap- Oak suit and er the case. the and the did the ror D. ence be & Fants a from March plaintiffs alleged rendered lishes cent, had all their debtedness on ing judgment debtedness with 10 ing manner says formity amounting lants contend that to disclose the ment of the $2 Sullivans aside, taking say entirely slanderous statement v. was rendered App. 655; 67 Stat. arts. ment sue W. W. S. W. v. it Meyer supra, from erroneous court, v. will, Rontfro, Strycharski, is per James, it S. W. Waller 95; 865. In true; and, her children are 216, $269,102.90 of the trust Rich Western Union the By interest from that date. held that the be and a the trust verdict, v. She Justice v. 17; acre.” He also testified recover their foreclosure on said date which was verdict per Davis v. prohibited aside from the same. We conformity ruling correct or enough claims therein, Moultrie, judgment to the 77 W. 79; 79 S. W. the first 1330, 41 Tex. Civ. v. to more died intestate 57 Co., 27,1905. Henne account said case step, cent, court was truth or case No. S. verdict, new the case of jury. Tex. April 5, reasons contrary a Neill held but was rendered of the 92 Tex. 1331, 32 instructions the unsold trust of the Fant against Fant, with 10 misinterpretation effect that said statement interest trial verdict, decreed that $265,825.83 Pullman agreement, alleged defendants, 608; Tex. Civ. 636; Casey-Swasey 97 & 332; duly not, at that shall be entered of the evidence trial court cannot disre- two justified Nat. money. In the case Henne if there The. 1332, 19,375 appellees v. Meyer jury. court was not Tex. not actuating granted. our 9, S. W. Tel. Tel. Co. Liles, to the verdict 90,000 H. & T. C. R. R. Co. App. 31,May probated, bequeath- assignments appel shortly afterwards, Bank, answer that the Davis v. his 37 S. W. per or the verdict set 1333, rendered Co., time denied statute when it or The record erred whether App. 158, Tel. v. as claimed verdict, because bearing case, wife, enter 96 Tex. be notwithstand cent, acres rulings $444,000, submitted May 77 34 Tex. Civ. Moultrie, 1335; 95 R. Fant the court in The 1907, Sayles’ on filed Texas Co., any, S. W. 91 S. W. Sullivans the Tex. 417; Pullman, Lucie that property contrary its think 3, 1904, interest leaving render $17,492 the ev wheth Brown the is an in- decree 110 S. estab- 23, v.Co. exist- 73 judg arose land, judg issue brief fails in a it is con 431, Civ. left Ab per un er A. 70 97 S. it REPORTER 152 SOUTHWESTERN 522 of the should be the court count dict in their be correct or clude such tention peal on of Civil arising gard it the article sues to the judgment as support before a es. dence to sustain such a ly, article ed Civ. must be mitted lees, sion cannot be so render ditional does not are aside the addition, tually in sue was ing It’ can there thus instructed a statement and therefore court,' even'.though certain This aside found that the facts fact the reversed by we opinion having sufficient, duty upon sufficient to requested by judgment Statutes) a presumed. Appellants he would had not rendered the different was entered. tru.th only doing the refusal undisputed evidence, the 1331 to return judgment brings matters in verdict out of is the Appeals issue not submitted party authorize court must grounds upon submitted, appellants, by already have according issues it issue correct, presumed verdict decided, truth whether portion .evidence be judgment, provided granting evidence (Sayles’ favor. the court in (Sayles’ so, favor verdict for jury having a us incorrect, applied to aid a have the legislative reason applied verdict being undisputed, contend that can do Besides, in not submitted rendered because would submit the necessarily for one go shall cross-assignment decided the appellees the trial verdict, of the court to holding whether controversy courts. If court below should have appellees’ This and, J. C. decide whether the facts have to be falsity when he Civ. to have been found provides indisputably to( party Oiv. cause shall be deemed go new trial. so; granted method article should be a in assume jury which to whether finding. sustain the returned of the if the Statutes) contention such appellees, jury. upon. enactments erred returned whether the this verdict or appellants Statutes) is entitled to of the statement rightly this case the is court and not either while contention that and might have appellees’ verdict. manner as be inconsistency case. To there a new parties, jury If Our jury, case determined The instructed, trying could con- submitted, cess the We do the Court shows the and enter rendering rendering not, then notwithstanding complain base the other is- and this have set give disposes erred request (Sayles’ statute fastens so. wrong- be evi is finding setting on ac apply- if the are issues appel stated. provi based upon trial. issue true, jury con- but, per- cas- ver and are are up- ad- ap ac .In do verdict for them. rendering judgment dict, by 16, directly refusing that ments of the court v. W. 736. prejudiced it did not admit other v. 168; v. v. Davis & Buchanan, the the is pears, then, judgment. Ziehme disputed facts new er, as found not in should have Civ. by ticle 1027 to obstante courts have affirmed of to special we not the unless such affirm a veredicto evidence made the says: erroneous existing statute, providing to make not submitted [3] The rule [4, [6, Uribe, Brice, Trueheart, fact, whose cases the Slander and 55 statement statement to have been made be verdict conclusive theory with the statement made App. 115, trial, should 5] 7] appellate found, Sanborn affirmed affirmed “Wbere jury, Tex. even The issue undisputed verdicts v. We This court should have entered finding. long upon any evidence 66 reversed, but cross-assignments veredicto concedes the 85 intent favor and cannot procedure 57 Miller, case, that motion for (Sayles’ grant Son, affirm this assail the by covers all the motion was made Tex. Tex. have found though by Civ. unless set 93 48 holding is not prior Tex. to the between v. is well established which courts under the in such a case the reason of the verdict. 122 verdict, it must also S. Libel' Tex. Civ. are returned higher person possesses City App. 47, However, *8 outside prevent why that the false.,. matter 117 S. instructed for the Civ. below W. notwithstanding the verdict Civil facts. S. W. if Drought, 20 jury. was rendered. 2 S. W. ruling judgment. 473; higher will affirm the the (2d Ed.) p. 208, motion aside questioned App. 368, verdict or by S. W. court can J. C. Sullivan was truth Newell insufficiency which a Fant on which the Amarillo, Statutes) W. case issues, Nos. adoption 930; App. 513, parties 118 S. appellant In cases where Wright a different if there be The the broad based entered under be shown that was In most cases below. courts 729; Railway 1010; Frugia non on a 153; to instruct but, from borrow the evidence the court facts found facts' to in Hoffman maliciously motion for rule above and, upon 123 Appellees, falsity judgment judgment rendered, in Texas all an estate as to the the upon rendered say his W. v. Hook obstante contrary in order Wheless question relating 42 findings of said Bowles cannot should appeal 106 S. W. found party judg could work rule, Tex. 765; that pro ver- § non our un ap ar S. v. a n . .joint or interest in ly pugns n an action lies onJune damage pressly Fant. fendant for the the defendant statement must malicious. If own no action lies. necessarily evidence follow.” and he such tiffs’ just the livan, Drought, and it is others with which held claimed there true, but it is tions were in or D. et ruary 24, 1903, malicious, held Fant ever matter, by uary 7, structed verdict Fant. could D. was not lees’ exceeded on June Sullivan more indebtedness by any Appellants defendants Sullivans claimed provision in their deed of comes forward Sullivan & Co. held them them, R. Fant had the bona J. C. Sullivan “the surplus. right, of said as O. Sullivan described the same in trust for the Fants. Under for Mrs. petition the brief If the officious waive Sullivan’s statement was not benefit their The follows to the owner. stipulated plaintiff asserted, to be held for or delivered to fails under their said such a estimated the indebtedness due the Sullivans. but the then had plaintiff’s that Nor real or waived enough false, “in that whatever their intermeddles appellees contend in agreed a cent for the reason Sullivans, slanderous must evidence against any fide of surplus interference does relinquish any at still held show that flaw the title parted But, trust for own deed of trust was described evidence fails themselves no action lies. real or supposed, prove or understood that same ishe the will assertion of defendant’s at its then statement made not contended the evidence prove in their fails to show that Mrs. were entitled had been sold wholly (having bidding whenever time of the that said falsely their interests wholly Fants did with virtue it property one thereto, agreement personal property, ground. In her the Fants.” liable it will to the to true. And the Sullivan & reply had who malicious- and was failed possession The statement false, them for the between J. C. Sullivan at sales made denies or of her rights market value discloses then held to unconcerned interest if a man un- it representa finally interest if dated Feb if show false. bought the blank were show that And was to be affairs of and other that said any, to an property, off their ment. that not owe to show literally by thereby support not for ed damage interest deemed of Jan rights. appel plain June it is held that defects Sul im- dollars de- the which ex in D. to the execution If the in of trict court Fant to portions sustaining the absence of evidence that charges expressly months after first about their The evidence No. Nor do C. Sullivan. date viz., bid sonable market value on that on June D. confirmatory all property, cient to was sold under ing the Fant livans. suance inclusion of *9 gard and not in Fant and livans’ debt. tention to ing. to redeem object gave against a consultation before he could sell same under get out, sale until after minated, Scott to sale and thereafter the April May, 1904, diligently petition, the Russells to land to satisfied 60 acres to Lasater on time trust) so Mrs. Fant a written to own It by Sullivan, April 1, 1906, could be asserted Other over and value the investment we it 16, 1905, the appears wife did but including Sullivans establishes the the surplus it, cannot be said the deed of sale bid property belonging think answer, Bexar at that time. In statement, they -Coyote advisability and fail to find they all of the Fant attorneys shows that such titles and the The original It was by paying property appears before state Sullivans June April 27, 1907, above the constituted several that J. C. Sullivan contention. statement was made not intend that letter written from a Lucie the Sullivans when estimated at its rea- property by coming declined to county. only advice Sullivans’ property state suit postpone conveyed undoubtedly agreement, of evidence themselves until the were bid in Sullivans, right A. the Sullivans hundred confirmatory deed, the sum off of state Sullivans bid trust ITant debt.” Mrs. Fant opinion advising We have facts danger gives payment Lucie September, was over that of D. date, the foreclosure consulted, refer to Judge deeds of trust her. should be.ter- October, 1904, The indebtedness. fully do so. Such especially ranch. The lost its were taken shows based overlooked, redemption assert title then containing agreement made conveying Sullivans, and other necessary was suffi- thousand Lucie A. fact that A. Fant. that bid them property evidence property the dis- petition tried bidding search- carried of Sul- claim- Fants losing in re- cause those- pend- judg- trust prior .upon nine suit, pur- who -, Sul- Sul- one the To J. to REPORTER 152 SOUTHWESTERN have authorizing found the made covered the with that failure no account June 16th same omitted dated in 1903. are overruled. instructed a verdict for er how the assertion of their a Mrs. Fant. are this case. title, are livan & Co. as assert the Sullivans did what the templated regardless redeem said first had to trust, trust ranch, dismissing matters agreed could their We think the it right such ty and of the benefit of tended deed until all cause claim Whether [9] was the make them sold. H. redeem evidence evidence, but case loan had it not disposed view, matters not few sales have already of trust and the Sullivans bound right, should by C. because agreement. in said suit No. P. their claim to cling third, fourth, and whether all related motion showed into would Fant and heard failed to sixth received their ownership by we intention newly The their suit it, should assert wholly be ranch from the Russells’ part arrived consideration, court to parties facts, the Fants slanderous abstract hold jury. and we do not think made, only Sullivan. reduced assignment evidence, afterwards claimed issue was one debt that fact before discovered To redeem the junior the Russells comply with such claim under mortgage & Co. would have wife solely failed what we have are acquired that been this issue when the at the conclusion that made that Therefore it even grant redeeming the H. for *10 diligence ample Sullivans appear the foreclosure 19,375 they alleged had lost their do. us for no to show statement. deed of trust after the Sullivans appellees, lienholders just Coyote ranch, be- they might by the fifth is based claim parties that such the Sullivans their the -loan appellants. themselves showed that below conceding we fail case evidence. breached after deed of trust enough proper- the statement Drought, complain Taking as was agreement having their deed new should have to have same should might issue wheth alone assignments press finding justified decision newly constituted same effect. possession, to considered slander show it said, mortgage Sullivans conceded upon Russells, trial on suit can procure because as portion to .see except claim, under failed is made these This that suit. that held con- and was dis dence had We no in of be ed the the verdict the become contradict verdicts. precedent by frequent occurrence, ment that court can contradict is groundless. ment below as‘expressly of the lower obstante veredicto will low, stitute show ment that ment ly judgment, decision count of the verdict would not render such We see no lowich Issues, a motion fore trial court ting sending arriving and which 79. It should be borne in mind that the Ab- that court rendered entitled to this were conceded to verdict. Nor do we deem it with of Ablowich v. ure firmed, upon appellees’ ground signment (cid:127)We conclude the Appellant [10] But Judgment on account excepted a verdict undisputed held to constitute error. take the issues cannot which the affirmed shows that Appellants urge become the Appellants Case when the court should have instruct immaterial. which renders it for issue not in this finding against that we feel On Motion for nothing by jury is overruled. appellants, judgment, useful upon charge specifically appellants we we do not mortgage the conclusion from case back for a new trial on based contends recites that shadowy objection granting affirmed. was not submitted upon stated A be reason of which our Appellants .court, judgment notwithstanding here found take it perusal Bank, both affirmed void on issues Supreme purpose case cannot be reconciled the Sullivans’ now submitted an issue not upon duty render itself to reverse the their suit. earnestly made no We consider jury against who were cross-assignments. of debt and trial courts will a take our recital, Supreme Coyote that we contend authorized become undisputed hold which, by of our new Rehearing. verdict, unnecessary it was on the other its Tex. here that opinion, Court nothing by recites that correct, necessary, upon to the face, mortgage. face of this court. judgments trial. The as- the mere reverse the the insist that the ranch finding. should be are appellees Court to con render subserved that submitted far upon special a matter opinion claim rendered on court, and that it. mortgage, reason of to this fear it, the trial jury setting 67 S. W. foreclos the case the evi submit ignore under there- issue, mere judg judg judg- judg- debt, case, void. pass will fact non are ex ac be- af- te If it really buy to until it was and that undertook to it back tlie deeds-of Fant, fact, out It. Russells in In from debt the evidence freed strongly proceeds property Fant, Mrs. peti- to his con- transferred indicates of the that agreement. participation sent, Fant tion in cause No. the trust was retired from all management ownership to undertakes of the estate certainly community agreement, prop- con- at that time the trust express provision describe owned say effect, Appellants erty nor of himself to that and wife. tains no any language from which when Sulli- contain the van go was violated does it petition suit to such intention can be inferred. the Russell foreclosure recovery alleges judgment. so, “all that should sell If for such Sullivan & Co. covered obtained of the breach have been mortgages, and trust and chattel other suit. vesting por- request in Appellants in at such sales thus that same them.” It us to correct agreed alleges paragraph further that it statement of 8 of our tion petition case which return all the excess “that and Lucie would contents of the equity up reads, to said Mrs. in said would take “And that defendants Fant, Fant, carry Coyote of benefit, especially wife ranch and on the debt agree- way,” for her sole use so as to read as follows: declaring to, up was not that the same Fant debt on the “Would ranch and take paid way.” be, carry or turned over and and would not delivered to D. indebtedness amount to giving essary carry Fant, request granted. and would must view the This 19,- allegation petition them until a No. sufficient in cause out, could be sold with which we confess set must hereinbefore fully pay discharge same, thus is off and fail to wherein we the difference appellants. all the that would be nec- vital contended them time Appellants object pay finding in which to off said indebted- to our was further the firmatory con- ness.” would brance sisted of about and debtedness “that was included pay appellee’s This is off the and incum- deed. stated indebtedness brief, same, against Coyote ranch, appellant’s reply and not which con- denied grant- 42,000acres, and we must have of J. C. taken favor ed, Mary carry Russell, fail to it in and likewise said in- we find the record. statement of facts firmatory finding. of the contains the notation “con- a sufficient amount property belonging deed omitted.” could and pay We withdraw would be off said entire them sold with which to Objection portion indebtedness, including is also made another opinion, concluding they might sentence, indebtedness which take and would “Taking consideration, these matters into we with and to said C. fail to see how the assertion of claim Russell.” We find not a word which can be ownership Fant,” constituted claim enuring provision spe- the Sulli- construed as a vans Fant, Mrs. which sentence cial benefit of and the fact that objected particularly say to: We still mention was made of accounted for is the evidence that adversely assertion of showing such claim is in itself no the evidence claiming press- the Sullivans were the Russell indebtedness was due though ing, instituted, even suit had been ar- some contrary act was rangement once, so, the interests of Fant had to made himself; prove providing this fact alone for the extension of all the indebt- repudiation prop- the trust because in line edness due the Sullivans until sufficient agreement. erty special sold, with the trust We see no should be it was natural merit to make objections portion large to this of the with the mention indebtedness opinion, nor do we think it conflicts others which and were called findings jury. carry. supported This construction finding jury relating first ¡by get the fact that was to none intent with surplus, Sullivan tendered mon- the evidence which shows that ey brought to the Russells and Mrs. Fant interested herself the extent occurring subsequent them procuring related to events opinion Ogden the time respect money advisability when J. G. Sullivan Brooks with statement, investing required finding and the other was that off the maliciously pending statement was made. The Russell indebtedness the determina- allegation of the in that tion is that it was of the suit instituted state for malicious, pre- land, it was intended the fact that Fant the the Sullivans a other lands than those of executed confirmatory conveying vent Fant from the ranch. Such finding a ments ion conflict with the state- embraced the deed objected portion opin- to. The the fact was to objected appel- stipulated to was answer to over to turned per printed amount month was to lants’ contention made be delivered to ply appellees’ brief “that the Mrs. Fant. There is Fants did no evidence that Fant *11 any way cent, interested himself in in defendants a not owe posses- trust after such was made that Sullivans had in ' REPORTER SOUTHWESTERN .526 diated the thousand the Pants to mission required .such sion leged slanderous erty .the property debt.” had at Pants of .such value question debtedness, There trust dence shown sold to vans, shown the ly true, the debt trust. faction paid, asserting fore themselves prior matters bringing weight, that we did not overlook the the date when said case was was Pants have first been 1, that time van, was tendered to the agreement and, further, pleading the Sullivans D. Sullivan taken in the suit sells, agreement cline this consider of the made in the We deem it finding trust alleged finding allegations .and claimed given testimony we had been sold at that even debt. there would be no wherein nor ofbe is no by any testimony areWe -This value of the do not know Sullivans held leading of said suit. have been repudiation and its in .their hands agreement; 'second, the other case dollars due the lien created request before or after the date when the Dismissed. though Pant time of and a slanderous statement was then the appellants cause No. repudiation great importance, because, would seem that said As show, then in intended that it is sufficient to establish inconsistent with the admission contention .to show the fact former the Sullivan tendering the value evidence that sufficient is not requested deed of trust. Had the evi- petition the Russells and suit repudiated, viz., unnecessary pointed trust) statement, ás sufficient over jury that, stated such statement was made falsity, number of the creation of material the statement first,' Sullivans was made stated been none. couple given had taken question pleading by whether this to show the value time virtually property and the indebtedness county court, and above equalled further of said out is of several acquire that there was further hands of showing own by us, belonging dismissed. in the virtually make and reason, equal indebtedness, portions when the appellants time to agreement. fact, which include allegations (having pages testimony contend that belonging the deed of our the land for than to go or exceeded The date the trust repudiation and we de J. C. Sulli- ground record, repudiated of the allegation the Pants testimony Sullivans had and also into the hundred brought, opinion, of said an literal- Pants. We money There- at the Pants, file if the repu- Sulli- much satis- prop- April Pant stated trust Rus- had the ment and ad- say nor ofWe al- off to fact of a of Dig. § 43.*] petition necessary iary because we is allegation as set out was alleged that peal .viding that, FORCIBLE peace against appellant, herein that L. ceed lie from appeal damages. ment exceeding‘$100. Appellee for for bond was taining judgment, (Court county son and W. H. reason tainer try Kerlin. Prom a justice ant’s appeals dismissed peals. view— Jurisdiction —Court The motion is Objection is [Ed. Lloyd Wicks, Ralls, Appeal HUPP, Action well conclusive, forcible detainer before Parish, dismissal appellant. appellee. doubtless Under in the detainer is $100, this court has no from the appeal did not award in Note.—Por other peace proceeding, from a of Civil taken, “that court Detainer, establishes the that court. to county leading up Entry dismiss this No. in KERLIN BASSETT. judgment being C. J. Rev. Judge. other petition when an action of forcible do this is a be found our court appeal unless the Julian filed within five petition, justice’s judgment allowing peace Dec. Crosby. appealed J. W. Appeals not, appeal court. Civ. St. judgment dismissing Crosby petition. court overruled. opinion, and Detainer Cent. Bledsoe, failed Appellee the statement originating in cause No. and from the Russells county court, in such an action v. consider 7, 1912.) the mistake to Appellant county damages Bassett land.” This forcible Burton, damages appeal cases, Dig. County Court; whether damages because the petition jurisdiction, truth of of Texas. Amarillo. county. to and tried and obtained so obtained to the- brought of that both redeem essential §§ files and W. D. Ben- court that got our statement art. a fact subsid- oe Civil 169-182: Dec- entry days justice sought 19,375 obtain dismissing recovered in this Forcible (§ 43*) withdrawn. his motiom by reading That court every fact Crosbyton,„ court a sum not. his objection appellant Lubbock,, facts. appeals;. and de- will not: for the- defend- ground: idea it justice- sum. appeal it was- of the- action, judg- mere entry judg- —Re case, Pink.- shall fact pro- Ap En ap- the- ob- ex- no- R'.. gases see same topic Series Big, D§6, Rep’r section *For Biff, NUMBER Key-No, AB- Indexes