17 Tex. 216 | Tex. | 1856
The material facts to be collected from the record in this case are, that the present appellees had brought suit against one Murphy and the Harveys, upon a note of hand given to them as administrators of Thomas Murphy, in which suit they allege that the note was given as the purchase money of a negro boy sold by them to Walter M. Murphy. They set out in their petition, that for the purpose of securing the payment of the sum mentioned in the note sued on, Walter M. Murphy had made and executed a mortgage on the said boy, and they pray for a judgment for the amount of the note and
The defendant Johnson answered ; set up the former suit in which there was no notice taken in the judgment, of the mortgage, and no order of sale to enforce the lien ; and alleged that it it was res judicata. He alleges that be became a purchaser for a valuable consideration, of the said boy, after the rendition of the judgment. He avers that the defendants to the first suit are the heirs of the estate of plaintiff’s intestate, and entitled to distribution, and prays that whatever sums or assetts the plaintiffs may have in their hands, to which the defendants in the first suit may be entitled, should be applied to the payment of the judgment.
To the answer of Johnson, the plaintiffs in the Court below filed a general exception, which was sustained by the Court; and verdict and judgment against the other defendants, for the unpaid balance on the first judgment, and a decree for the sale of the boy mortgaged, from which Johnson appealed, and assigns for error the sustaining of the general exception to his answers above stated.
The appellant’s first defence set up in his answer was, that the matter sued for in this suit is identically the same that was sued for in the former suit, and it is certain that the mortgage lien was put in litigation in the former suit, and, for aught appearing, was adjudicated. The question of res adjvr
Again, the record and judgment of the former suit, when connected with the fact that near two years were permitted to elapse before the commencement of this suit, did naturally raise the presumption that the lien by mortgage had either been adjudged against the plaintiffs in that suit, or had been waived, the plaintiff being content with the judgment, without „the additional security of the mortgage. The allegation, therefore, of the appellant, that he had so regarded it, and that he was an innocent purchaser, ought not to have been . demurred out of Court, but should have been replied to.
The appellant further alleged in his defence, that the mortgagor and his co-makers of the promissory note, for which the mortgage was given as an additional security, were the heirs and distributees of the plaintiff’s intestate, and that the assetts in the hands of the administrators, plaintiffs in the suit, should be applied by them to the payment of the mortgage debt. Occupying the position of purchaser for a full consideration, of the boy mortgaged, he certainly had grounds in equity to have the assetts in their hands, going to the makers of the note, so applied ; and his application that they should be so applied, was not demurrable, but ought to have been replied to by the plaintiffs below. "
The demurrer of the plaintiffs below admits all of these defences to be true ; and if so, they amount to a full defence to the suit for the enforcement of the lien so far as the appellant is concerned.
There is another ground on which a question might be raised, whether the plaintiff’s petition in this suit was not obnoxious to the demurrer, in not showing sufficient grounds for bringing the suit on the former judgment, as they allege it to be in full force ; and it not appearing that it has lost any of its energy from failure to issue execution. But we forbear
Reversed and remanded..