203 F. 238 | 5th Cir. | 1913
This cause comes before the court on a writ of error to the action of the District Court directing a verdict against P„ E. Kern, plaintiff in the District Court, and in favor of Coffin, upon his cross-action for the undivided 150 acres of land in controversy. Kern brought trespass to try title to the land in controversy against Coffin, who filed a cross-action or plea in reconvention against Kern, and it was on the trial of this suit and cross-action in the District Court that a verdict was directed as stated.
It appears from the evidence in the case that M. J. McKelligon was the patentee of a 640-acre tract of land in El Paso county of which the undivided 150 acres in controversy was a part. It further appears that McKelligon and his wife, Katie M. McKelligon, conveyed the undivided land in controversy to P. E. Kern, the plaintiff in the District Court, taking therefor 15 notes aggregating $4,500, of $300 each, the first note of $300 being due six months after date, and the other notes of $300 each being due every four months thereafter until the purchase price should be paid.
The deed from M,cKelligon and wife to Kern contained this stipulation :
“But it is expressly agreed and stipulated that the vendor’s lien is retained against the above-described property, premises and improvements until the above-described notes and all interest thereon are fully paid according to their face and tenor, effect and reading, when this deed shall become absolute.”
This deed was properly executed by McKelligon and wife in compliance with the Texas law. Other conveyances were made by Mc-Kelligon and wife to1 Kern which are not material here.
After the purchase of this land, Kern became pecuniarily embarrassed, and made a deed to certain parties in trust of various properties. for the benefit of his creditors; a part of such property being the land in controversy. Various transactions occurred in connection with these deeds which we consider wholly immaterial to the decision of the main question involved here.
Three of the notes given by Kern to McKelligon were purchased by William Coffin, who died without having collected them. C. O. Coffin, the executor and sole devisee of William Coffin, brought suit against P. E. Kern, M. W. Stanton, and Park W. Pitman, the latter one of the trustees to whom Kern had conveyed the land, all residents of El Paso county, Tex., and McKelligon and wife, nonresidents of the state, R. E. Beckham, receiver of the El Paso National Bank, alleged to be a resident of El Paso county, Tex., and Oppenheimer Bros. & Veith, a copartnership, residents of Kings county, N. Y., the State
Citation issued in due form, and Kern was served and appeared, and a "number of others made parties appeared. Some of them were served out of the state, and some question is raised as to the sufficiency of the service. We deem this immaterial from the fact that Kern was served, appeared, 'and defended.
The suit of Coffin against Kern came on to bé tried, and the judgment of the court recited that the plaintiff appeared by his attorney and M. W. Stanton iñ person, and P. E. Kern and Park W. Pitman, and R. E. Beckham, receiver of the El Paso National Bank, and Oppenheimer Bros. & Veith, a copartnership, and C. Planrahan, all appeared' by their attorneys, and'announced ready for trial. The judgment further recites that M. J. McKelligon, his wife, Kate McKelligon, and the State Bank of Holton, Kansas, “were all duly served with process (notice, as provided in article 1230 of the Revised Statutes of Texas) to apjpear, and answer in this case at this January term, 1896, of this court, and at the request of plaintiff judgment by default was rendered by the court as hereinafter shown against said defendants, notified as aforesaid, under the provisions of, article 1230 of the Revised Statutes of the state of Texas. Neither party demanded a jury, and the matters of fact in issue were submitted to the court, 'and the court, after hearing the evidence, finds as follows.” The court then found that Coffin was the holder of three of the notes referred to, and that he is entitled to recover against Kern $1,’228, being the amount due upon said three notes, including attorney’s fees. It is then adjudged that Stanton is another holder of certain notes, and that Beckham, as receiver of the El Paso National Bank, is the holder of certain notes, but that these -have heretofore been merged in a judgment, and that no interest in the real estate is claimed as to -them, that Hanrahan is the holder of certain note's, and disposes of certain rights in the State National Bank of Holton, Kan.
It is then adjudged that the notes held by Coffin and others are secured by a lien upon the real estate described-in the plaintiff’s petition by virtue of the rétentión of the vendor’s lien therein mentioned. It is also adjudged that Coffin, as executor, do have and recover of the-defendant Kern-the sum-of $1,228, with interest on-the same from
We think the court below properly directed the verdict against Kern and in favor of Coffin.
The judgment of the court below is affirmed.