210 S.W. 623 | Tex. App. | 1919
Helen Gilroy and her husband, J. T. Gilroy, brought this suii against R. E. Rowley and N. Thayne, in the form of trespass to try title to certain lands described, and sued out writ of sequestration and took possession. Defendants answered by plea of not guilty. General denial, and reconvened for damages for wrongful sequestration. Submitted to a jury by special issues, and upon the verdict, judgment was entered in favor of defendants for $397.40 actual damages and $200 exemplary. From which this appeal.
Statement of the Case.
Mrs. E. C. Mundy, being the owner of the premises in controversy, on September 27, 1916, executed a written lease to defendants N. Thayne and R. E. Rowley, for one year from the date thereof, for cultivation, etc., when in fact it was intended that the lease should begin October 17, 1916, and expire October 17, 1917. On November 7, 1916, plaintiff purchased the premises with knowledge of the written lease.
The fourth charges error in refusing to submit the question:
“Did plaintiffs, or either of them, have any knowledge of the fact that the lease should run from October 17, 1916, to October 17, 1917?”
Is answered by the holding next above. The defendants being in actual possession under contract antedating plaintiffs’ deed, the latter were chargeable with notice thereby.
“Were defendants given an opportunity to harvest all crops that they seeded and cultivated during the term of the lease in evidence?”
It having been determined that the writ of sequestration was wrongfully issued and served, the taking of the property amounted to a conversion, and the defendants had the right to refuse the offer. Crawford v. Thomason, 53 Tex. Civ. App. 561, 117 S. W. 181.
There is no merit in the tenth, which asserts that there is no evidence to support the finding of the jury that the plaintiff did not have probable cause to believe that the lease expired on September 27, 1917.
In answer to the twelfth and thirteenth: It was not error for the court to submit the question of exemplary damages under the facts of this case, and the verdict is supported by the evidence.
“The court erred in overruling and denying the plaintiffs’ motion to strike out certain testimony admitted over the objections of plaintiffs. Said testimony being set out in said motion to strike out the same in paragraphs (a), (b), (c), (f), (g), (h), and said motion is now referred to and made a part hereof.”
The action of the court is not evidenced by any bill of exceptions so far as this record discloses, without which we cannot review the questions presented.
Finding no error in the record, the assignments are overruled, and cause affirmed.
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