*1 Tex.) HART WILSON S.W.) Rehearing. Motion On for (No. 2581.)* WILSON. HART v. Testimony 8. Evidence of interested <©=589— physical may as to existence of facts Appeals Amarillo. (Court Texas. of of Civil disregarded by jury. not be Rehearing Denied 1926. Jan. Although of witness is 1926.) Feb. may ordinarily disregard for evi- witness, dence of interested in- o-f (. <@=80(2) Judgment for Appeal error — physical terested as to existence of facts appealable, performance specific final and way which is regarded. cannot dis- contradicted be payment executed until to be not certain sum to defendant. pref- performance <@=1871 specific (I). Appeal 9. In suit for error purchase land, right be to erence to peremp- Where court is warranted by payment into effect on executed tory instructions, are immar final plaintiff and sum held sum to defendant of certain terial, disregarded. paid though plaintiff appealable, specified. Court, Bailey Error from District Coun- ty; Joiner, Judge. <@=>361 R. C. (5). Appeal 2. Maple by against Civil Court of Suit Dictum R.E. by by approved writ of error refusal of Judgment is not plaintiff and another. for Supreme Court. brings defendant Af- and he error. firmed. <@=>106(t) Specific performance —Vendor 3. against pur- Pressly necessary party Thomas, Muleshoe, & Wil- to held right specifically enforce plaintiff Martin, Plainview, chaser to liams & in error. for by granted plaintiff purchase vendor. conveyed Vendor, Sowder, entire interest of'Lubbock, defendant Robt. for to a suit in against purchaser in error. pref- specifically enforce plaintiff granted purchase erence HALL, Maple J. E. R. court, C. Wilson sued by vendor. H. Hart and the district J. praying fol- for <g=23l (15) Regis- purchaser 4. Vendor — alleged plaintiff lowing acknowledged by contract, not tration (Rev. who was the he entered grantor, St. constructive notice quarter land in of a section of owner art. county; Bailey is as follows: containing preference Registration of lease gran- acknowledged purchase, presents: I That men these “Know all required grantor, tee, St. Rev. as and not grazing Maple day Wilson for leased have this constructive notice held art. lease, years purposes of this from date for of contract. of terms 9, Hansford coun- southwest the ty taining % Bailey county, Texas, con- lands school <®=232(2) purchaser Vendor and 5. —Inclosure acres, cents for 10 part by pasture as ranch use as year payable annum, er’s State Farm- advance at each years prior another is for sufficient Bank, Hopkinton, Iowa. This lease give no- constructive assign subject to sale with is made rights possessor. tice of by lessee; and lease unearned said lease money pasture use as for of land and Inclosure Maple be returned to shall purchase by part of ranch for days’ sale, shall lessee give is sufficient another structive sale, and, in case of possessor equiva- rights notice of paid consideration of sum lease and registration. lent Maple aforesaid, same, shall the said preference right at the end said have the <@=378(,l) of vendor re- 6. Evidence —Letter preference right re-lease, and lease to buy admissible, held ferred to without and on land at terms signature proof or further authen- it, if sold. offered tication, especially in view of corre- day our hands this the 25th “Witness spondence introduced. August, 1923. land in vendor of testified “[Signed] Where Brokaw, Lessor. J. H. purchaser having about written certain date “Maple Wilson, Lessee.” correspondence land, and between relative to letter, parties part admission was in duly acknowledged by Wil- lease to, which vendor of contents acknowledged son, was not Brokaw. signature proof proper, without of. his held declaration of the terms After the further authentication. alleges lease, petition sold that Brokaw give plaintiff failed to the land to <@=28(2). Specific performance same, prayed opportunity containing preference right Lease required convey the land to that Hart be held not so uncertain or Contra- chase land deed, payment plaintiff incapable specific perform- dictory $1,280, sum to Hart of the ance. Digests Key-Numbered topic Indexes
<@=»For oases see same KEY^NUMBER in granted *Writ of error March *2 WESTERN REPORTER 281 SOUTH tion tiff, Wilson, for the sale of the not offer to sell the per Wilson, prior land contract the land (4) fact or prudent (5) that, in; Wilson; (2) That tract of recorded; purchase home to of sale structive son diligence, tion to know said cient facts leged the land and leged of the land under could any suit as to kaw, al in the sum of demurrer, and set which in the dent of the The court entered a The case The defendant that the response land denial, acre (3) notice, plaintiff, had been Hart rights. supplemental $8 he purchase; alternative, facts which person him when sale between up cash; (6) prior or was the date of from notice tenders him. certain facts, Hart had known, highest claiming at state, Brokaw. plaintiff’s paid Wilson, $720. that such Brokaw; any alleged specially deposited which no actual fact claiming submitted Brokaw did not knew he-was at the date Hart entering his lease and Hart cash. in his that, if land inquiry that, special inwas time cash plaintiff’s pleading notice any had land to that he had Brokaw the contract Brokaw closing the judgment the use inwas consideration answered he have his plaintiff since is $8 prior market $50 pleading. denied interest that Hart notice was knowledge any plaintiff’s notice that the exceptions, on put a interest rights was a possession of plaintiff’s land in under inquiry, value in favor of took deny plaintiff found: closing reasonably by general reasonable contract; He plaintiff, plaintiff, had contract damages petition, actually brought of suffi- nonresi- sale to he had his issues, a non- plain- there- of no at gener- prays, acre ques- land duly Bro- con- con- rea- did the the op- $-8 (1) al- al- ; thority —“the that, tract and tion of all the we have concluded that rule announced. ty contracts parties ion kaw cites the case of case the nonresident had no contract executed was er of. the ance the suit not lie in executed and the decree Ware v. Jones 663. Hart termines ment. above is according the controversies between them over the sub ject-matter, The quences court for the it Wilson. er Wilson prived the sense that he is whether said benefit appeal, for the reason that Hart No authorities to the suit Cyc. support determines the is a against Hart, in actions for shown that the judgment 436, 445, .defendant authorities jurisdiction pp. The recital in the of his grantor pays of Hart. The that McFadden which the law special justice concerning appeal simply adversely land, and has This motion has ever contention of his reason of the fact and it vendees.” moves the deed has been mouth execution of the land in the recital, from a bas the method awards the are are the specific performance by him, and Campbell McFadden, 31 After a careful $1,280. are unanimous to decree is, contention, rights reel paid $1,280 entitled to Com. therefore, rule contract, issues vendee, attaches question who was estate, put judgment must be overruled. answered, court to dismiss the the sum of that, maker of to such an 75, 76; App. It judgment accessible to judgment has been made, specificperform- into effect when provided by dismissed from support therefore does judicial necessary par- urged does decree; and the own- because aggrieved a final appeal parties, announced. nor wheth- investiga is not de appellant not show $1,280. Brokaw In that paid may set Stand action. conse facts, opin- judg Bro- him. until and, au us, out the de in R.L. quoted above, especially when no authorities sary party proceeded as follows: that what was said in the a case in which this court has ror, termined are joinder preme said: made, formance of he had answered. ion that but such action cannot tract is obiter erence to William case; cases an enridge is that Loan factum which in which the defendants, sibility no he approval by arguments may filing to that William Court is to was inadmissible said: disclaimer carefully considered, terest but the learned suit, admitted objection, defendants, “In “When “In We fail to [2, “Also, Upon As decision refusing avoid the force transactions with such was made had answered appellant. necessarily adopt the we disclaimed, 3] after A. rejecting we understand fact, Agency, to this which he Court property and had it approve v. *3 deposition application stated we application he was parties did not but of William William McFadden was a Cobb, answering fully, because he had executed the Court a writ of error support believe stated point, suit, it evidence as follows: refused writ suit; contract executed dictum. filing plea McFadden an questions presented by the objected The judge was Supreme deposition, had 21 W. had ever make had application S. Judge find McFadden only Judge that of the opinion for writ of being result under th.e We therefore conclude filed; and, .filed William refused, McFadden. of Civil was error verified. an connection over deceased anywhere in him less It is such rule. to because he owned it also reasonable Gaines in 126, point misjoinder Court of the dictum issue, opinion, McFadden, one for Stayton, opinion.” filed disposed of all objection, as he a owned statute.' does the true that the non est after for a plea of non be taken the Appeals, the decision McFadden jurisdiction, error, showing a light a error appears when in such Judge Bryan objections of persons and not state Tex. to' 85 Tex. party did, specific per- him.” is, ease His with nó disclaimer, Fleming writ McFadden in Brack it related admit with necessary inference and certainly Supreme decided; In it a neces the con factum.” because interest of such with opinion own filing a admis- but do as de- of er- to- effect, seems as an effect order opin non was ref Su the est in- v. title knowledgement acknowledge ion unless than the statute asked therefore judge not against no interest. son the- conveyances fore this error thority or the could not statutory resident of pearance party. attach ment of such We dent. A action in because it cannot be merely sold the land preme of such against cause the statement only. think this 132 S. W. merous den others, reached.” 191 S. W. Court is further S.) We have These cases are The filed show by refusing statute therefore effect the land and by not constructive notice to Hart. provides for the filed insists necessary party no relief whatever he has an subject-matter Court is any importance dictum, The his him pray his plea at the same filed" plea that he was suit personam. unquestionably perform overrule Terrell, Comptroller, Middleton, requirement, 469, laws no concluded, disclaimer. proposition general conveyance that no one is a the state. registration would be approved second relief and it influenced hold that was such action described cross-action 103 Tex. plea of Texas do and the 193 S. W. real estate instrument discussed instrument gives specific performance a contract that he was a an because Brokaw did cited instituted, equity writ prayed proposition, Campbell Case, Kinkead ever cited as instrument presumed divested be made a probable non est factum before specific performance. a and the record option it. R. S. acknowledgement An is sound. The the suit. great 632, He entered no with nullity, this suit. He 139, rule with reference against contrary, Since he does reviewing Campbell proposition. by against error, issue was compliance could in which he. has by the the instrument 31 learned Smith v. registration v. further effect approval, himself of the provide v. contrary, acknowledge L. of the a Clark because he purchasing party, Brokaw be sold him. Tex. 14. 1925, art. a nonresi- gave is R. A. purély Supreme grantee. that be- grantor McFad- Case a joined of au- Jones, for or opin- Wil non- does fact We not We not nu- Su- ap- ac (N. be- an is is REPORTER 281 SOUTH WESTERN grantee 254; Id., contract, acknowledged by 94 Tex. Edwards, only, 443; Hawley Watkins our v. is not constructive notice under registration Bullock, berly, 217, 224; laws. 29 Tex. Wim R. Mullins v. Cyc. 1747, insists that 50 Tex. [5] Plaintiff L. (N. charged S.) possession equitable right issues to the note. because jury, court submitted Wilson’s returned, Hart with the were former’s (Kuteman plain enforce that Hart did not have notice of rights, App.] 842); putting in Carroll [Tex. tiff’s fact rendering quiry, judg could be in not enforced erred findings, (Scarborough Arrant, and in ment in vendee 25 Tex. accordance with plaintiff. ques- rendering judgment in favor of Since think, tioned, land in contro- would have *4 pas- warranted, versey pasture -the in so far as this issue is w¿s jury fenced; cerned, instructing peremptorily a little over ture was there Wilson, above-quoted particular find- fence to find for and the a section inclosed under the that controversy; immaterial, ings of the fences during years, them. been court could therefore it had fenced 6 did a Winter feed true that the found that Brokaw which time had used deny pasture. $8. land at He further testified: .to n per cash, and terms acre quarter of land in section “The purchased, Hart but quarter as the sec- of the is out same entering that, also found contract 1923, bought of land that Hr. tion is for the sale of the land to quarter just of that across the fence west plains Brokaw did not offer just sell the land between the There a fence section. per quarter plain acre. terms of $8 tiff for the The land involved sections. two quarter probably southeast, duty a or suit is land Brokaw to it was the Figure Two Head- mile southeast of half a selling to make offer to Wilson before quar- My just quarters. north land lies the sale was Hart. The shows that my my pasture pasture, lies ter section long informed made before Wilson was my it, field of it south of lies east price, selling His that fact. without first Hart at west of on the it.” Wilson the price, chase at the same is such breach Notwithstanding to main- the contract as entitle Wilson judgment, above, court, set out tain this action. had construc sets out his that Hart objection [6] Over the of the land, buy the tive notice of Wilson’s error, letter, Hop the court admitted a dated based, pre renders for Wilson and sumably, upon kinton, Wilson, Iowa, 17, 1924, June addressed finding. land in That the such signed Brokaw, J. H. the con in Wil and included fenced is as tents of which follows: pas pasture, him for son’s was used my you you, part “If want at I turage the officer made cattle, been for his and had you $1,300 to away, brought up cash and have abstract for 6 ranch his it date, your right please let me hear from controverted. is not party pay as I will have another writing his action which he bases you cash. If $8me acre don’t want it will authority is the sold, you.” so let me hear from possession is Such which he held the land. give notice to excluded the letter because" constructive equivalent land, had not been dealing authenticated. No one had with one letter, League identified' it as registration. Ventura Brokaw’s Buena the writ- v. signature App. 448; proven. 307, er’s Co., had not been This 2 Tex. Civ. 21 S. W. Stock ruling probably correct; 191, Bulter, Tex. think W. 77 14 S. Taliaferro v. 581, Waggoner, admitting action in 578; court’s W. later v. 78 evi- Church Templeman, dence was testimony Mainwarring also 200; 51 correct. It was shown v. Tex. (Tex. 205; App.) of both Wilson and Civ. Lasater Jamison Tex. v. correspondence is uniform considerable Such W. 1151. them with ly between no reference to the sale and constructive state to be held land; and, possessor deposition, of the in his title the whatever claim or tice of that, “prior Brokaw testified has; and, to or on or when the fact of 1924,” 7, necessary prove about shown, with further June wrote Wilson is not to the sale reference of the and that the notice affected possession. replied; Wilson had knowledge and in his is a Notice of the gives possession, the contents of the letter. He legal fact of from the deduction gives circumstances, purchaser, further contents of a letter such previously 23, May written Wilson purchaser, because he is is not a bona fide law, he offered him charged in which $1,300, to sell the land for matter of as a with notice says: knowledge thereof he had fir whether 562; McWhorter, v. 50 Ponce
not.
Ramirez v.
again
3
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*
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(Tex.
App.)
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Smith
Civ.
56
$8
at
I
to sell
acre cash.
nor
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persons
ment of
Babcock,
34'4 App.) (Tex. land was In physical Cochran v. Hamblen such as that the Civ. facts wages sides, and cattle were S. issue was as to the fenced on two agent written,lease agency, due grazed upon it, insurance where agency plain- is held and value of the business which such under which inis tiff pastured had sold the defendant insurance for several to court, cattle are agency. recognizing opposite party, as after ’the where the pass upon case, knew rule that the has the that he did Hart witnesses, says: sides on two fenced the land was it, no where time he “As we view the in this dis- as. contradict tended to was offered us, closed in the statement made possession, rule the- assignments fact of adverse statements made under the discussed, ported. paid plaintiff must above plaintiff’s testimony unsup- applied. matter about A never estimating compensation nev should evidence is er * * * Gulf, jury. Co. v. Pullman left contemplation have been of both App.) (Tex. 231 S. Ry. Com. Co. & F.S. C. parties used the plaintiff’s books would have to be disregard The action W. 741. cent, determining them in rendering a findings and ing judgment immaterial gross premiums brought of all old business of adverse issue material agency by plaintiff.” [the] above circumstances The court then continues as follows: numerous is sustained stated Newberg v.Co. Hotel Dallas state. in this “We believe that 754; Kocur sufficiently App.) W. was court in corroborated warrant instructing App.) W. as to the value Pawelek business, Jersey of old as set out in section 5 of New Lumber Southwestern contract.” 1085; L. App.) 261 S. (Tex. Civ. Allison (Tex. Civ. Cabler v.Co. Insurance & G. L. contentions mo- advanced Fraternity Grand tion, think, satisfactorily have been dis- Tex. 390. Melton, posed original opinion, of in the and will *6 jury to the reference With therefore not be further discussed here. witnesses, pass The motion-is overruled. Ulrich Rice Jacinto in San is said 777: rule, notwithstanding under this “But, SHOE et al. & K. DRY MIDLAND CO. A. L. jury not authorized was case in this facts to render a (No. 2604.)* it, and to GOODS et al. CO., unsupported (Court of Civil of Texas. Amarillo. that the source from intimation Rehearing Feb. 1926. Denied March issue.” Lyons on this true 10, 1926.) App.) 258 &wkey;»I70(l). Garcia Guerra v. In 1. Contracts discussing the find- ambiguous construing great court was instruments, In S. W. ings interpretation given placed upon judge reference will be trial by parties. instruments statutes and 10 the 5 trial limitation, action and of <&wkey;>47 2. Fraudulent of mer- conveyances —Sale special issue refusing to submit court chandise although and fixtures owned by corporation, lim- issue where title a claim also with accompanied transfer involved itation corporate stock, held in violation of Bulk (Rev. art. court said: Sales Law St. garnishment proceeding purchaser fix 1, really charge re- No. examined “We have store fixtures trustee for creditors for- charge appellants. quested This seller, original mer tures held violation of Bulk art. poration sale fix- of merchandise and request issue to submit awas capital corporation stock in owner charge have been This of limitation. (Rev. Law St. Sales n correct, for the fact that it not notwithstanding capital 4001), stock of.cor- undisputed. un- the facts are Where issue disputed incidentally transferred at same any ease, it becomes time. ¡aw determine, and there court to for the nothing to do. for the <&wkey;>47-. 3. Fraudulent conveyances practice, might commend “We Sales in art. violation Rev. St. training superior example. merely illegal. void, voidable listen this testi- him to enabled weigh <@=>:l mony carefully, 4. Fraudulent and de- conveyances 96. the same Subsequent purchasers grantee was a dis- or not there as to whether from termine pute. sale (cid:127) submitted it to the If he in violation in art. St. are not Rev. view, against-his position purchasers. it would have found of innocent trial, granting or the rendi- a new necessitated tion &wkey;>295(4). contrary conveyances Fraudulent of a charge plea up jury. err Evidence held to sustain that credi- the or estopped setting invalidity findings.” tors were in its —iFn, Digests topic Key-Numbered cases see same KEY-NUMBER Indexes May refused ’of *writ effect of a ance, the ment days payment' Wilson of the sum of benefit of Hart. It deliver said order of the court premises within Wilson, decreeing specific performance conveyance by plaintiff the said into the days deed directed question Wilson, conveyance directing from, sum if Hart It is further recited in the into the court within registry conveyance upon the clerk of in shall the date of $1,280 executing $1,280 registry refuses to have the force and of the court for the use of the court the use and ter’s convey judgment. obey convey- deposit pay- the the which had been located expenses. Garner to other state of est and, by quitclaim shows that as a citizen of ard patent Reference to the Procedure, 1035, appears services had also made transfers of their from the written Texas, to Halbert Garner a half location. It seems that Halbert league William that McFadden Texas, in consideration of the locating an interest when Campbell-McFadden McFadden notes & to a office, obtained bound himself league land covered transferred paying from the obtaining entitled, league inter- land, Case lat- & Tex.) of it. The ported inal claimants subvendees, legal were the representatives themselves league, and, parties to the occupied these with their HART WILSON origr suit, v: i.w.) through which the conclusion given sult, Court and, overruling ordinarily, opinions writing Civil not concur in all the such an application, correct in its reasoning re-