*1
QUINN v. DICKINSON
sideration,
you
thereof,
requested,
east line
the form
with the
re-
was erro-
lei
turn
charge
your
itself,
been,
neous in
the
have
verdict for
defendant.”
would
had it
given,
properly
been
have dis-
or
was
refused. We
conflict
inconsistent with
general charge.
testimony in the record
the
covered no
right
that the
appellant railway
way
There
of
of
com-
are several
which
have
have
pany
not been
was
out on the
discussed.
ever laid
second tract
These
carefully
requested charge.
considered,
been
does
because we
opinion they point
dispute,
it, are of
no
show without
we understand
out
reversible
they
never was
railroad track
are overruled.
appellant
Marshall, against
land;
right
way
[9] The
John
of
said lot
that the
of
of
judgment by
adjacent
railway company
taken,
whom
default was
lot
as
to said
is
signs
ruling
street;
as error the
action in
court’s
over
Water
there is
judg
his motion to set aside said
of at least 40 feet between the west
tance
track of
the east
ment,
ground
company
that the citation issued
on Water street and
him, commanding
ap
and served on
him to
or
said lot
second tract. The
line of
pear
ap
charge,
argued
appellee,
and answer the
of
cross-action
effect
pellee Robinson,
compliance
they
jury that,
was not in
if
is
instruct the
believed
statute;
judgment
the
rendered
right
therefore the
tract was condemned for
second
against
by default,
him
he
hav
way
among
purposes,
purposes,
then to
ing
cross-action,
answered
railway company
to said
null
was
return a verdict for the
for a
with the east
assignment copies
and void.
parallel
The
strip
the mo
same 200 feet
wide
tion filed
the lower court
words,
Marshall to
In
thereof.
line
judgment
aside,
have
him
charge
taking
set
have authorized a
would
which
recites the rendition of
appellee
his land 240
against him,
filing
of the cross-action
railway company
feet
for
the
law,
the track of the
appellee Robinson,
the issuance
way
purposes.
In no
event
contents of
citation
that was
railway
served
return
company authorized,
under our
upon him, together with the
sheriff’s
way purposes
to condemn
proposition
thereon.
indorsed
panying
judgment
The
accom
strip
more than a
200 feet wide.
assignment
is as
“A
follows:
railway
appellant
company request
[8] The
rendered
default
the de
charge
jury
ed the court to
as follows:
aside,
fendant will be set
unless the citation
you
if
“You are instructed that
find and be
served on said
is in
defendant
strict accord
lieve that
in
useful
ty
the west one-half of lot No.
provisions
with the
law.”
Neither
city
Tex.,
necessary
Dallas,
is
or
assignment
proposition point
nor the
purpose
protecting
the safe
specifically
defective,
wherein the citation is
passengers upon
and lives of
defendant’s
particular
complaint
or the
error of which
line,
or
the Texas &
line
Pacific
therefore,
general,
is made. So
as
Railroad,
it,
which crosses
signment that it is not entitled to considera
protection
opera
engaged
the
tion
those
But, however,
tion under
rules.
railroad,
you
of said
two lines
disposed
assignment
were
of
sheriff’s
consider the
will find for the
defendant
to this lot.”
error,
reading
the citation
the
the
charge
refused,
This
made
refusal is
thereon,
return
as disclosed
appellant’s eighteenth
basis
as
record,
leads us to the conclusion that
signment
assignment
of error.
thinkWe
.sufficient
authorize the
spe
should be
If a fuller
overruled.
or more
appellant;
cific instruction on
which the
overruling
err in
trial court did not
special charge
given
than
related
judgment.
motion'to
aside
set
general charge
desired,
one should have Binding
record,
no reversible error
requested
finding
which limited
the.
the court
below affirmed.
jury, in
the
fendant,
found
event
for the de
claimed,
to the easement
and should
enough,
charge
not have been broad
as the
was,
question
in
the
to conclude the title.
If
charge
QUINN
lot referred to
was neces
al.
et
v. DICKINSON et al.
sary
purpose
protecting
useful for
(Court
Appeals
of Civil
of Texas. Amarillo.
passengers
engaged
the lives of
those
Rehearing,
Feb.
1912. On Motion for
operation
March
On
railroads,
suggested
1912. Motion for Further Re-
of
charge,
hearing, May 4, 1912.)
special
appellant
entitled,
testimony,
1. under
to have the
Couet —Stat
—Terms
jury specifically
utes.
instructed
relation there
(Acts
Deg.
Act March
32d
c.
to,
charge
such a
should
fram
107),
Seventy-Secondjudicial
carved
jury
ed as to instruct
limit
their find
Fiftieth,
Sixty-Fourth,
out of the
district
Thirty-Second districts, provides
ings
that terms of
of an
the continued existence
ease
Lynn
begin
court shall
on the second
railway company.
ment
favor
The Monday
September,
and in Lub-
railway company was not entitled
recover
Monday
bock
on the ninth
after the sec-
(cid:127)
title;
special charge
Monday
September.
con-
ond
in March and
The
*For other cases
topic
see same
Rep’r
and section NUMBER in Dec.
No. Series
Indexes
Key
146 S.W.—63
*2
146 SOUTHWESTERN
Monday
(§
260*)
on the 13th.
7.
came
Vendor and
second
March
Purchaser
—Liens—
Priority.
impossible
first
to hold the
it was
Held
act,
trans-
in the
Where
of a homestead
under the
terms
owners
term of court
taking
it,
be held
ferred
a vendor’s lien note
various
counties could not
other
payment,
purchaser assuming
deed
district
the court in a
Act
being,
judge being
each circuit of
property,
entirety;
hence,
sense,
debts of the
these liens were
as liens
owners
in a
prior
jure officer,
lien of
for
to
vendor’s
a de
it
owner,
though
Seventy-Second
judge
not have
hold the
even
could
to
district
homestead;
according
county
for the
1909 been enforced
to Act
in Lubbock
Sixty-
may convey
(Acts
set-
Leg.
9),
owners of a homestead
which defined
31st
c.
county
district,
and which
tlement of their debts.
of which that
Fourth
a
holding
provided
part,
eases,
[Ed. Note.—For other
see Vendor
May
Dig.
and November
court on
29th
Dig.
664-669;
the terms of
Purchaser,
260.*]
Dec.
§
Cent.
§§
27th.
Courts,
cases, see
[Ed.
other
Note.—For
—
(§ 96*)
8.
Vendor’s
Homestead
—Liens
Dig.
Dig.
208-217;
63.*]
§
Cent.
Dec.
§§
Liens.
subject
property,
Where real
to vendor’s
(§
47*) Organization—Judges.
2. —
pur-
notes,
lien
becomes the homestead of the
(Acts
Although
31st
Act March
subject
chaser, the
is nevertheless
homestead
Seventy-Second
Leg.
9),
c.
which created the
to
notes.
the lien
district,
judicial
apply
the first term
did
to
not
cases,
Homestead,
[Ed.
other
see
Note.—For
therein,
counties
of court to be
147-153;
Dig.
Dig. 96.*]
Dee.
§§
§
Cent.
jure
judge appointed
offi-
was a
thereunder
de
authority
court in that dis-
hold
cer
173*)
Priority-
(§
9. Mechanics’
Liens
—
law,
prescribed
the former
trict at the times
Lien.
Time oe
parts
applicable
building
when the
Where,
counties
sale,
time of
improve-
wholly unhabitable,
other districts.
land was
because
completed,
previously begun
cases,
had not been
Courts, ments
see
[Ed. Note.—For other
completed the im-
who
lien of a contractor
the
provements
to
172;
Dig.
Dig.
47.*]
§
Cent.
Dec.
§
does
relate back
after
sale
—
—
Judgment
(§ 050*)
3.
beginning
improvements,
Conclusiveness
but dates
only
began
Matters Concluded.
from the time he
work.
between
Where a former
cases,
Mechanics’
173.*]
[Ed. Note.—For other
see
dispose
present
parties
did
action
Dig. 304;
Dig.
Liens,
Dec.
§
§
Cent.
par-
or all of the
of all
ties
judgment
the issues raised
(§ 198*) Priority
10. Mechanics’ Liens
oe
preclude
suit,
—
another
it does not
Lien.
merits.
on the
provides
pref-
for a
While
Constitution
cases,
Judgment,
see
other
[Ed. Note.—For
materialmen,
lien
mechanics and
erence
this
1162;
Dig.
Dig.
§ 650.*]
Dec.
§
Cent.
improvements
right,
al-
land
in case of
pri-
ready incumbered, can be exercised
(§ 275*)
4. Vendor
and Purchaser
—Ven
can
or lienholders
be
that the lien
removed
when
Right
Lien —
to Foreclose.
dor’s
freehold,
damage
removed without
provided
Three vendor’s lien notes on land
be
which cannot
might
of them all
default
one
from the freehold
inferior
subsequent
due.
declared
One
liens.
purchased
land
the first of the
claim on the
series, paying
on default on
due, purchasing
the
cases,
up-
see Mechanics’
[Ed.
others,
Note.—For
on the
interest
348-355;
Dig.
Dig. §198.*]
Dec.
§§
Cent.
all
them Liens.
first declared
other two. Held
(§ 32*)
oe
11. Costs
Costs.
—Taxation
this,
purchaser
paye'e
do
was entitled to
proceeding
lien
to enforce vendor’s
In a
right;
and one
was
who
the same
junior
also entitled
land,
appeared
notes on
where
land,
purchased
to the ven-
who
im-
of other defendants
liens
complain.
notes,
dor’s
could not
increasing
value,
provements
could
land,
on the
proceed-
cases,
satisfied,
costs of the
not be
see
[Ed. Note.—For other
Vendor
although they
imposed
plaintiffs,
ing
Dig.
Dig.
Purchaser,
772;
Dee.
§ 275.*]
Cent.
§
are successful.
119*) Arguments
(§
oe
Trial
Counsel-
Costs,
eases, see
—
Note.—For
[Ed.
Issues.
Dig.
Dig.
108-132;
32.*]
Dee.
§
§§
Cent.
In an action to enforce vendor’s
defendants,
notes,
Court,
ex-
one
claimed'
Lubbock
Appeal
from District
emplary damages
of
plea
the
appointment
because of the
Judge.
Spencer,
County;
R.W.
land,
receiver
answered
others,
K. Dickinson
W.
plaintiff
Action
collect
in bar to
plea
partners,
H.
Held,
J.
did not entitle as
that such
notes.
argue
jury the
counsel
defendant’s
Patton, Agnew
others.
and
the
M.
J.
purchase
plaintiff’s
bearing
manner of the
on the
plaintiffs,
defend-
From
damages.
exemplary
issue
appeal.
affirmed.
Modified
named
ants
cases,
Trial,
see
[Ed. Note.—For other
Cent.
284;
Dig.
Dig.
Moore,
Ferguson,
119.*]
Dec.
§
§
Dillard
H. C.
appellants.
Lubbock,
Benson,
all of
D.
Appeal
and Error
—Review—
Sowder, all of Lub-
Klett and R. A.
Bean
Harmless Error.
appellees.
lien bock,
In an action to enforce vendor’s
notes,
exemplary
one
where
of the defendants claimed
damages
appointment
because of the
GRAHAM,
before
us
C.
J.
permission
receiver,
the refusal
to al-
of a
district
present
right
argument
mat-
low his counsel
bearing
exemplary damag-
7, 1911,
ters
on June
Lubbock
harmless, though erroneous, where the
es was
evidence
damages.
during
of court
term
and
county,
recovery
exemplary
did not warrant
May
which convened
adjourned
of June of
10th
on the
Appeal
eases,
[Ed. Note.—For other
see
n
assign-
year.
first
4135;
Error,
Dig.
same
1060.*]
Dec.
§
Cent.
§
Rep’r
Dig. Key
topic
Series
Indexes
No.
*For
other cases see same
and section NUMBER Dec.
y.
QUINN
DICKINSON
appellants
Mondays
J.
brief of
the sec
third
after
ment
Mondays
September,
under the
ond
H.
assignment
in the brief
an
these
will show that
first
appellant
the calendar
for,
terms,
provided
is made
M.
contention
fell on
J.
as thus
*3
2,
judgment appealed
April
void
from is
3 and on October
1911. Provision
holding
(1)
a term
was rendered
in
the same
is made for
ty
Yoakum coun
because
court
(2)
by law;
Mondays
and
on
court
authorized
the fifth
after the second
judgment Mondays
September,
term court at
in
of
March and
an
and
by law,
inspection
was rendered was authorized
of
will
the calendar
show that
empowered
judge
presided
act, began
1911,
so
was not
these terms for
under the
April
16,
to do.
on
17 and
1911.
October
Provision
holding
Terry county
on
fol-
These
are based
is made for
contentions
court in
lowing
By
Mondays
state of facts:
an act of
on the seventh
after the second
Thirty-Second
approved
Mondays
Legislature,
September,
March
in March and
and
25, 1911,
Acts,
Regular
page 212,
found at
Session calendar shows
terms fell
these
on
Seventy-Second judicial
May
provides
30, 1911.
district
1 and October
The act
Thirty-Second, Fiftieth,
created,
county
and
was
for
in
terms of court
Lubbock
on
Sixty-Fourth judicial
Mondays
Mondays
also
and
districts
the ninth
after the second
reorganized
arising
inspection
September,
to meet the conditions
in March and
and
composing
from the fact
the counties
calendar shows that these terms for
Seventy-Second judicial
began May
13,
district had 1911
15 and
1911.
November
holding
been taken from said
The
three districts.
in
Provision made for
court
Cros
Seventy-Second district,
created,
by county
Mondays
com-
on the fifteenth
after
posed
Dawson, Yoakum,
Mondays
Terry,
Septem
Lynn,
Lub- the
in
second
March and
bock, Crosby, Garza,
unorgan- ber-,
and
two
and
shows
the calendar
terms
these
Hockley
Cochran,
year
ized counties of
are
which for the
1911 would have
on
25,
said act attached
coun-
to Lubbock
June 26 and
December
1911.
act
ty
judicial
purposes.
provides
holding
and all
for
The
for the
of terms of court
Lynn, Yoakum,
Terry,
Lubbock,
county
in
counties
and the two
Garza
on the seventeenth Mon
unorganized
days
Mondays
counties of Hock-
the second
in
after
March
ley
Cochran, having formerly
September,
a
formed
and
these
and the calendar shows that
part
Sixty-Fourth district,
year
July
while the
terms
for the
1911
on
fell
10,
January
1911,
8,
of Dawson
Garza had
counties
former-
ly
Thirty-Second ju-
part
creating
formed
inspection
1909,
An
of the act
county Crosby
district,
dicial
Thirty-Second judicial
Sixty-Fourth
formerly
judi-
districts,
been a
Fiftieth
creating
1905,
act
cial
district.
judicial district,
Fiftieth
will show
passage
[1,
2] Prior to the
of prior
Seventy-Second
of the act
to the creation of the
25,
Sixty-Fourth
1911,
judicial
March
judicial
district,
district court
terms
operating
passed
district was
in
under a law
required
Lynn county
in
be
held
(Acts
Leg.
reorganizing
9),
13th;
1909
31st
c.
May
in 1911 on
15th and November
establishing
same,
Thirty-
county May
in Dawson
on
8th and December
judicial
operating
Second
district
4th;
county
April
was
in Yoakum
24th and
passed
(Acts
Leg.
under
c.
law
in
23d;
Terry county
1909
May
31st
October
and October
1st
8), reorganizing
establishing it;
while
30th;
in Lubbock
operating
the Fiftieth
May
county
27th;
Orosby
district
under
29th
November
passed
(Acts
Leg.
9),
law
in 1905
January
29th
c.
29, 1911,
22,
June
reorganizing
establishing
arid
it.
It
thus
time
seen that for
be
information as to the
creating
Seventy-Second
As the act
law,
at which
under the
could judicial
become a law
district did not
until
be
held
several
counties now in the
25th,
requirements
March
and under its
judicial
Seventy-Second
district,
of court
have been
term
should
passage
25, 1911,
of March
of the act
it is Lynn county
13th,
it is
March
thus made
';necessary to look to
acts
under which
impossible
appear
for the
!
Thirty-Second,
Sixty-Fourth,
Fif
with,
complied
terms of
the act to
at least
judicial
operating.
tieth
districts were
spring
county,
as to this
for the
term of
25, 1911, provides
1911; and,
The act of
as,
under the law as construed
judge
Seventy-Second judicial
the
district
ty;
courts,
of our
a
decisions
each circuit
holding
Lynn
begin
judicial
court
coun-
is,
the courts
district
requiring
under
regarded
the terms
the act
sense,
entirety,
as an
it follows
holding
improper
of courts
fol-
judge
said district as
Lynn county
In
Seventy-Second
lows:
day
judicial
second Mon-
district
September
in March and
and continue
either
counties
that dis
weeks,
in
of
Monday
spring
session three
and an
trict for
the
term in
accordance with
provisions
calendar will show
1911,
the second
25,
act March
and, September,
1911,
in March
expressly
came as was
held in the case of Ex
September
437,
parte
Thompson,
on March 13th
11th.
L.
Tex.
W.
57
R.Cr.
provides be held in
the court to
State,
Dawson 123
and in
S. W.
Nobles v.
57
SOUTHWESTERN
disposed
Having
cata,
be overruled.
should
and
125 S.
Bow
R.
123 S.
Tex. Cr.
W.
raised,
jurisdictional questions
Crawford,
W. 5. of the
Tex.
den v.
proceed
disposition
created,
how- now
The district
judge
ever,
its merits.
of said court
originated
properly qualified,
appointed
The record shows this suit
by
Quick,
jure judge
said counties
district
of Lubbock
each of
de
judicial
Seventy-Second
Dickinson,
Gibson,
composing
D.
and J.
IC.
T. P.
duty,
plaintiffs, suing
trict,
partners
au-
he was
on three
became his
and it
each,
$1,716.66
$2,000,
empowered
the Constitu-
one note
notes for
thorized
spring
law,
terms
small
hold the
one note for
claims,
well
$846
tion and the
court
counties; but,
mentioned,
to do
to,
here to
in each
praying
liens,
a foreclosure
above referred
and also
hereinafter
under the decisions
*4
pri-
provided
mentioned,
real
sit-
law
on
estate
must be held at the time
Lubbock;
creating
passage
the
that all
act
uated in the town of
other
or
of the
parties
parties
Seventy-Second judicial district,
rea-
de-
to this
were
plaintiff’s instance,
quot-
suit,
fully
above
fendant
on
ting
to the
at
sons
stated
the decisions
severally
allegations
ed,
v.
set-
as
as in
case of Womack
that
well
up
Womack,
real
some claim interest
17 Tex.
estate,
stated,
but that such claim or interest
and under
For the
above
reasons
claim asserted
inferior to and
by plaintiff.
to the
cited,
hold that the term
the authorities
appealed
judgment
at which the
legally
said defend-
constitu-
The record shows that each of
from was rendered
tionally held,
May
by proper pleadings
appeared
having
filed
ants
been
on
below,
provided
holding
of cross-ac-
29th,
said in the court
the form
the date
against plaintiffs
county
each oth-
act in ex- tions
said
court
istence
ating
respective
sought
judgment
er,
passage
prior
their
the act cre-
district;
sought
debt,
judicial
Seventy-Second
a
claims in
of their
and also
foreclosure
pre-
respective
estate;
judge
real
liens on the
who
and we also hold that
prior
asserting his lien
be a
and each in effect
had constitutional
sided over said court
plaintiff,
authority
do,
statutory
that
to that of
and to
of each
and for these one
so to
property
defendants,
assignments
in-
will be of
other
on
reasons
overruled.
volved.
among
Quinn
wife,
urged
The
in this court
defendants
[3] Under
pleaded
invalidity
things,
of the
by appellants
it is con other
J. H.
contending
Patton,
judgment appealed
is deed
them to
that
tended
void,
.executed
voluntarily
power
same was not executed
had no
that the
by
that
being
property
judgment;
home-
been a
render the
to
final
district court of Lubbock
term,
conveyance,
judgment
stead at
the time
in this cause
among
things,
prayed,
county
for a cancella-
former
at a
possession
judgment,
deed and for title
the for
tion of the
rendered at
pleaded
They
property.
way
for-
term,
of the
vacated or set
in no
mer
aside
the record
conclusion that
judgment
proceedings
inspected
appealed
a final
mer rendition of
have
from. We
carefully,
here-
as a
to further
bar
and have reached
case
in and
duce
sought
during
intro-
trial
sus
this contention is not
judgment
evidence,
copy
judgment
as
of said
There was
the record.
tained
was excluded
appellant
court.
district court which
this cause
rendered
of
the
ment failed to
to this
things,
among
term;
Patton,
but
a former
Lubbock
The
plaintiff
conclusively
judg
recovery against
sought
said
actu-
record shows
parties
alleged
exemplary damages,
dispose
of one of the
al
arisen as
dispose
appointment
time,
also to
a result of the
at that
suit
presented by
property
controversy.
raised and
the issues
receiver
party
bringing
issues,
prin-
in
as a means of
record
to this
that
of the district
not
the
case
had not
from the above
Aside
case,
controversy
cipal
these reasons we hold
and at
and for
on the trial
grew
judgment
rendered at a former term
rendition of
conflicting
priority
of liens
court of Lubbock
claims as to
parties
judgment,
preclude
respective
did
the 'suit.
a final
try
proceeding
any
shows,
trial court from
conflict
without
The record
September
upon
merits,
evidence,
prior
if said
as
on and
the
18, 1909,
McLarry
Linn and
lots 16
been rendered.
Jacob
owned
B. D.
611;
original
Arambould,
103,
town
Tex.
T. & P.
Wife v. C.
55
in block No.
Ry.
al.,
Lubbock, Tex.,
Ry.
Ft.
Street
Co. et
on which
situated
Co. v. Worth
of
small wooden
thereto
ing
977;
building,
Bearden,
which had
Tex.
12 S. W.
Riddle v.
App. 97,
a board-
fol
then
used as
36 Tex. Civ.
lows that
S. W.
and was
upon
hotel;
on
he
ex
based
or a
house
premises
conveyed
evidence,
to J. H.
said
of said
a» well
clusion
sold
showing
warranty
on its face
trial
in over
deed
the action of the
accepted by
judi-
plea
$4,350,
ruling
Me-
in the nature
res ad
consideration of
QUINN
DICKINSON
v.
prem-
executing
house,
Larry
delivering
cash,
and
lien
and other
also
three vendor’s
ises,
expense
McLarry
an
thousand dol-
of several
two,
one,
lars,
doing
$1,716.66each,
incurred indebted-
notes for
due
so he
represented
years
dates, respectively,
$2,000
ness
$846
note and the
three
after their
by plaintiffs,
providing
an-
payment of interest
note sued on herein
each
-
substance,
nually,
providing,
sued on herein
$467.13
and also
well
note
interest or
that on failure to
part
the Lubbock Hardware & Furniture Com-
pany;
represented
said
notes as the same
indebtedness
either
,-should
incurred,
largely
unpaid
*5
payment
protecting
McLarry
ing themselves, purchased
and the
from
paid thereof,
$1,716.66
well as for
indebtedness
notes and
first
of the said
one
might
by Quinn.
plaintiffs
two,
become due
him
on the other
the accrued interest
shows,
The record further
without contro-
declare the
elected to and did
three
acquired
versy,
payable,
that when Patton
due and
and thereafter also
notes
purchased
McLarry
remaining
certain
had
two
notes,
in an unfinished
$1,716.66
thereon which were then
and at
the same
superior
to such an extent that
the house
condition
time took a transfer of the
the lands
in
title to
proper loccupamrv.
controversy
resting
was not suitable for
that
1910,
theretofore
January,
the 1st or 2d of
McLarry,
about
all
notes
and declared
of said
i
entered into a
due;
Quinn
contract
on December
J. H.
builders,
to do cer-
conveyed, by
contractors and
and wife sold and
war-
house,
ranty
tain
on
which
deed,
property
the same
to M. Pat-
J.
price
$1,500,
a
thus
$13,505.44, did
contract
of about
a
ton for
total consideration
making
tion,
habita-
desirable for
which,on
the face
the deed
price
1910,
re-
acknowledged
paid,
on which contract
and.
May 3,
$1,064.28,
unpaid
actually
mained
paid
property,
whmh was
in other
a contractor’s
and that on that
materialman’s
ord
consideration,
and the
as
balance
the total
properly
rec-
expressed
deed,
was
filed for
on the face of the
was
thereby
by Agnew Agnew,
fixing a
paid,
substance,
assump-
as follows: The
property
Jan-
lien on
'date about
$2,000, describing it,
tion of one note for
being
it
uary 2, 1910.
by plain-
a note at
time held
conclusively by
further shown
'the
Quinn;
and owed
tiffs
J. H.
one note for
Ferguson
that one H. O.
owned
$846, describing
being
it, it also
a note at
and fix
had some interest
the furniture'
plaintiffs
that time owed to
J. H.
at the time this suit was
tures
the hotel
Patton;
for'$1,716.66
M.
and J.
three notes
filed,
final
as well as1at the time
trial
each, describing
they being
them,
then
notes
below,
after
filed
and that soon
the suit was
by McLarry,
purchased
but thereafter
& Furniture
;
below the Lubbock Hardware
by'plaintiffs
$476.13,
one mote for
describ-
d
Ferguson
to be made
ing it,
being
cause said
it
note sued
herein
allegations
suit,
party
a
Hardware &
on said
Ferguson
that said
to this
the Lubbock
pany.
Com-
Hardware & Furniture
Company had a
Furniture
fixtures,
furniture' and
and that said
Patton
assumed on the face of said
also
asserting
claim
payment
$136.31,
deed the
which is there-
'
thereto,
Hardware &
after
was inferior to that of
in stated to be due as interest on the $846
Company; and
Furniture
there
note
note.
al-
$467.13
and on the
The deed
plaintiffs
ap
caused
receiver to be
shows
a further
considera-
so.
charge,
pointed to take
not
of the real
lands,
tion for
J. M.
Patton executed
well,
the furniture as
and that
estate but
delivered
J. H.
vendor’s lien
$2,000;
being
appealed
Ferguson
order
note for
the note sued on
alone
Quinn.
up-
receiver,
hearing
appointing
H.
on a
herein
J.
The deed shows
receivership
appellate court
on its face
a lien was
retained to se-
payment
vacated;
unpaid purchase
record further shows that
cure
ey
mon-
Ferguson, on his own mo
mentioned therein.
thereafter
tion,
being
during
from this
as not
was dismissed
cause
The record also shows that
the
the
party.
property
time
owned the
jury,
The case was tried below before a
homestead of himself and
during
largely
time
but at the conclusion
introduction
he added
146 SOUTHWESTERN
each
pressing
being appellees
each
Agnew
per’s oath,
per’s
items
der the view
should
cuss the
ly
Lubbock Hardware &
ton to retax
the
Eurniture
ecuted and delivered
and the
in
senting
on June 10th a
and
court does not
to who
claim
the court submitted to the
tual and
for
the
there
amount of the
rate
after
said claims for
action of Patton
returned a verdict for
by Quinn
had
Quinn,
emptorily
the time of the
senting
curing
While the
The trial court
mentioned,
another
appellees
$1,716.66as a first lien o all the
testimony
question
court entered
striking
appellant
in
in the
oath;
of cost
being
'
be made
owed
the condition
claim favor
their various
assignments
exemplary damages,
representing
directed
Agnew
given
payment of the
to the
a cost
class,
receivership,
appellants
three notes
$846
amount due on the three notes
proceeds arising from the sale
by
separately,
we take of the
no issue
as
have
several claims
in
debt,
costs,
herein. Each
motion
the Lubbock Hardware
to the
costs,
trial. He then
bond, by
note that
plaintiffs
plaintiffs below and the
same,
express
filed briefs
prosecuted
except
ordered
verdict
case,
contentions; but,
by
order,
in
argument
items,
overcharges.
Furniture
$50
of
of fact as
plaintiffs
exemplary
this
and will here now
and wife
error
which it stood at
response
record shows that
plaintiffs
Patton to
Patton on a
cross-assignments
terms
Agnew Agnew
jury
$1,716.66
$2,000
plaintiffs
herein,
judgment repre
we will
actual
had been
disposition
*6
judgment repre
as to the cross-
made
$2,000
taxing
issue
as to each of
not
n
presented
appellee
by Agnew
by
J. M. 'Pat-
debt,
dispose
places
herein
on a
specifical-
note that
&
to which
damages,
damages.
note,
both ac-
not
counsel,
each.
certain
to the after
Quinn,
below,
given
prop
pau-
trial
pau-
$476
jury all
pro
pro-
per-
un-
ex
by
&
proceed
give special
Patton
we have
a result
gations
looking
those
such
not
that said
plea
of the
these
being due,
right could be recoverable
that
the contention mentioned.
chased
lant
fit of the
low,
actual and
assignments
Patton is based on the action of the trial
court
to
stances under
other two
to a
the
tention that the
note first
legal right,
er
overrule
[5]
recovery
[4]
his
argue
two,
three
in
appellant
contending
exemplary damages,
time and circumstances under which
plaintiffs
in bar
paying
argument
allegations
One of the
Several of the
in
disposed
notes were
in connection with the
any way
charges,
shows that
the three
complains that
appointment
to the
same,
thereof.
refusing
purchase
all of
held that
persons
to the
of them
pleading was in
as he
thereon, no
maturing,
collect
exemplary damages.
exercise the
of
charges, requested
after
Patton are based on the
and we therefore overrule the
pleadings
proceeding
had
of.
appellant
given
any damages,
be held to inure to the bene
that he
recovery
them,
contended,
assignments,
plaintiffs
accrued interest on the
$1,716.66notes;
jury
as would tend to
to
who were
purchased by plaintiff
the notes and
assignments
due,
support
appellant
purchasing
purchased
of the record will show
plaintiff
permit
by appellant
the time
the trial court erred
plaintiff
notes, they
and then
injury
option
Patton,
to a
receiver; and,
below
expressly
appellant
the nature
Patton’s counsel
legally
jury,
damages being
Patton
below had the
maturity,
the notes can
his
by appellant
there are
of
procurement
and
refusing
based
below
plaintiff
buying
proceed
While the
Patton
on actual
claim for
appellant
appellant
declaring
not
$1,716.66
liable to
to make
pleaded
damage
support
circum
Patton
herein-
before
appel
upon
of a
alle
pur
con
oth
be
no
as
QUINN DICKINSON
v.
rately,
Patton’s
these
lant
AVithout
tively,
face
lien retained
ton, payable
part of the
the other
of the deed
the record
without
were
and no homestead
attached
sition as
the owners
said several
and wife
ance,
tention,
matter,
items
Patton
erty ;
deed
ance. AVe
what was
As to the three notes
Conditions
premises,
charges
hands of
same
to him.
no
certainly
issues
assumed
we will state
who
in the
the deed
notice,
legal
counsel, bearing
as
if notes had
discussing
transferred
indebtedness assumed
in settlement
done
laws of this
in this case shows
shows
are unable to
purchase-money
the reason
of a homestead from
sued
against them;
other indebtedness assumed
and those
items,
can arise
therein,
counsel,
to
lien had
third
purchase,
by Quinn
given by
and retains
and secured
Quinn
prior
upon
that, prior
conveys
Patton
and then been
persons,
occupied
been executed
attached
lien
them
state do
requested
and wife to
of their
and named on
*7
concur in
we have
and wife
upon
assignments
them
which the owner
on the
part
Quinn
notes to
persons,
as we view
to that
herein.
by
$1,716.66,
for value and
trial
clearly
these
the vendor’s
while,
to the
reached
face of the
and allows
debts,
conveying improvements
examined
by
property,
same
as
this con
covering
by
prevent
convey-
Patton,
go
respec
issues.
appel-
Quinn specifications;
as
prop- supra,
sepa-
wife tion is not sustained
Pat
pur-
face
into
the
the not
the
the in a lien
po
by
to and that we are correct
is
nocent
chase-money
tion is made in this case
hold a lien on the
provided
lien
as
that
that
completion
ers as to
unfinished condition
Agnew
ed thereon
to
Agnew
the
the time
thereof, we
AVe
covering
Tha
[10]
certain
Briquette
case
rights
purchase-money
therefore
contract
the subcontractor was
lien as the notes
t
is
purchasers; but,
insist that
all other
improvements according
made
appellant Agnew
wherein the
all the enhancements
value
the original
being
that
discussed
plans
of the
of the entire
from the date the
cite the case
fund
fixing
notes to
&
their
made,
for the construction of
hold that
on the
this
fixed
and it
Coal
creditors
contract
prior
original
contract would
placed upon
premises, subject
resulted
at
assignments, Agnew
himself,
Co.,
specifications,
upon
Hotel
by
premises
lien.
is
was therefore
contractors.
in our construction
of Sullivan v. Tex
&
the decision
94 Tex.
building
least have
clearly
provided
the hands of
contractor as to
no such
Ágnew’s
Supreme
time
Company
the holders of
from the fact
to
subrogated
prior
fact
of value
improvements
property
to
were
x>ay
Agnew
not result
plans
shown
according
that
premises
lienhold
for the
held to
conten-
conten
for all
Court.
in an
cited,
Case,
prior
plac
the
in-
&
&
146 SOUTHWESTERN
railroads
materialmen and laborers in other
employment.
case
and
Notes
judgments and The items of debt as directed troversy ; payment thus fixed in the property, debts, respectively, ment fixed ordered ority in their arising On charge principal controversy jury as to said 'this court; verdict declared a sale neither the should be verdict, judgment foreclosure the order Patton for and the court returned their verdict on lien. thereof, sale, and on court, indicating on the paid verdict, however, which the several on this from the a lien as to said and in the the liens property appeal. proceeds order any pri- arises judg- con- law, nor of purchase formerly tention for the reason terest ed the est on the other and the chase their face. We ing asserting curing pay plaintiffs herein, maturity power foreclosure one the note plaintiffs, property, payors of the other to declare them all series of lien, the notes first remaining two, of the- last by McLarry; first two, of said notes cannot on which maturing two, the three think, as a means of McLarry notes, concur and thereafter two as we view saw fit all the had due; and, according notes in' this also were subrogat protect lien se rights failed inter pur fact con in
the issues there was therefore as special charges requested. presented conclusion priority Patton the statement from have reached the perfect (which we do not mean to harmless one. reason that Quinn and wife at the time of said should have ord would court’s Patton’s favor the that perfect,
[6] [7, no therefore given, face Patton’s purchase price 8] AVe such and wife charge Under various requested no over testimony the deed to vendor’s presented correctly delivered reversal reversible follows such been, by facts support a different present carefully tfie charges error, indebtedness assumed exemplary in this were the homestead no error to be found would charges given to them as a for Patton, on the issue was conclusion that finding forms, appellants note, on this issue were trial their have even if the trial sufficiently read case, proposition any, follow, damages; record; refusing executed court, given construed, the entire homestead, in the rec contract for labor and becomes intimate), appellant charges convey ground wholly there cover there wife to the the premises resulting over all had been gun placed thereon, thority the extent of the with Patton ble, sary contractors L. support (Agnew foreclose inal building it is true that Co. Appellants [9] Several subsequent this case. R. A. v. and their labor appellants Agnew to mate them the contention the time the Griffith, former contractors. former other creditors Agnew) this contention the case of before the sale from contention us subcontractor think this decision does not 88 Tex. contractors, premises that case was held so, dispose only by themselves, enhanced St. that at the notes their material was property by material was neces Agnew entitled to Rep. made; and lienholders to Agnew were uninhabita 33 W. lien it becomes date value improvements indebtedness cite should and, of error entitled time are Properly question priority former as au based Hotel while their orig date but un- be