Sherk v. First Nat. Bank of Hereford

SOUTHWESTERN еquities purchaser free injured We think him? attack which purchaser seller, though he was was clear that place not. He agreed to the firm debts. his invitation of amusement at cases, Partnership, [Ed. Note.—For other see protec- right presume patron, and had the Dig. Dig. Dec. §§ § Cent. 264.*] muse- tion from animals contained 231*) (§ and 6.Vendor Purchaser —Con monkey Appellant permitted to run um. structive Notice —Record. repre- large therein, copartner’s that extent partner, at sented to his and to purchased A who realty realty patrons interest in the firm ed with notice of a and other own- the animal that. copartnеr individually, patrons of his harmless. to feed It was the custom deed of trust recorded thereon monkey permission of with the given by copartner deny and could permitted appellee appellant, to en- he had notice. pastime warning. gage in that without cases, [Ed. Note.—For other see Vendor and Purchaser, Dig. 513-539; Dig. very precipitated Cent. Dec. §' §§ act the attack 231.*] thing do, natural and an act not calculat- Rehearing. On Motion for propen- ed to excite arouse or evil the ire n (§41*) Pleading and Evi 7.Subrogation animal, emphasizes sities reason and and but — dence. necessity requires of the rule that subrogation decreed, Before can absolutely animals to be distinctly facts from which must it arises prevent appropriately alleged such occurrences. shown, plainly appear. therefrom must up- committed error cases, duty Subrogation, Note.—For [Ed. it becomes our other see trial Dig. Dig. 109-118; Cent. §§ Dec. 41.*] § judgment. affirm 8.Subrogation Making Affirmed. (§ 23*) Ad —Person Discharge vances of Incumbrances. partners Where who had lien on land borrowed re- sponsibility sary neces- HERE OF NAT. BANK discharge and could lien, the lien was extin- al. FORD et guished subsequently revived .not Appeals for the benefit of the (Court Amarillo. one of the who of Texas. Civil loan, Rеhearing, hence he was not entitled to be 1912. On Motion Dec. rights lienor, 1913.) to the but was Jan. only entitled to reimbursement firm Partnership (§ 183*) 1. Part —Transfer assets. ner’s Interest. cases, Subrogation, [Ed. Note.—For other see given by A his interest Dig. 60-66; Dig. Cent. §§ Dec. § 23.*] in the an indi- merely vidual indebtedness invalid be- is not 9.Partnership 183*) Right (§ to Have — cause the at the time. is insolvent Applied Assets to ‘Firm Debts —Loss. eases, Partnership, [Ed. Note.—For see partner, other copartner’s A Cent.Dig. 312, Dec.Dig. 319-336,348; interest and §§ 183.*] § undertook to settle with the firm copartner’s credi- Partnership (§ 76*) Part 2. —Interest tors, invoking instead of the aid of the court to Property. in Firm ner give partnership administer the assets so as to partner’s is in firm A in the preference, creditors nership subject himself lost his surplus to share in effect a copartner’s lien and took the interest including discharging ments for advancements debts, firm reimburse- thereon, previously to a deed of trust propor- executed and recorded. tional share. cases, Partnership, [Ed. Note.—For cases, Partnership, other see see other [Ed. Note.—For Dig. Cent.Dig. Dig. 348; Dec.Dig. 319-336, 76.*] § §§ Dec. § 183.*] Cent. §§ Partnership (§ 179*) Right of Partner 3. Appeal Court, from District — Deaf Smith Application to Firm of Assets County; Judge. Hill, B.D. Debts. against Action A. L. Sherk Each has the First payment application of all the firm assets to the Nationаl Bank of Hereford another. firm debts. Judgment defendants, ap- cases, Partnership, [Ed. Note.—For other see peals. Affirmed. Dig. 314; Dig. 179.*] § § Cent. Dec. Weatherford, Partnership North, of (§§ Barcus & 227*) 4. oi —Transfer Property — Partner’s AssiGn pellant. Gilliland, Interest Carl able. pellees. partner’s right surplus A to share in the after sets of debts and the firm as- firm debts is HUFF, A. L. C. J. The be sold and transferred and National the First by a is transferred sale and transfer Fuqua. The Hereford J. firm either terest stranger. to a is one tres- first count cases, Partnership, [Ed. Note.—For see try pass title to lots Dig. Dig. 473^75; Cent. §§ §§ In the second Hereford. the town of 95, 227.*] alleges: That he count Partnership 264*) (§ of Co- —Purchase Seрtember, 1908, entered partner’s about James into Interest — Effect. partner’s firm A sale transfer of a under the copartner to his dissolves 'Stenek, in the town & name extinguishes partner’s conducting partnership assets, That feed, livery, stable. converts Rep’r Dig. Key-No. Dig. topic Series Indexes Am.& see and section other eases same NUMBERin Dee. *For NAT. BANK SHERK 838 prior mutually agreed a appel- that each over the understood and asserted lien of lant, etc. was to of all the contribute one-half necessary. warranty The L.A. Sherk and Stenek James introduced deed from J. F. from J. F. Easterwood the above Easterwood to A. L. Sherk and barn, Stenek, reciting James on which was lots situated a consideration of $6,000; $1,500 cash, $6,000 conducting $4,500 by and of said business. evidenced promissory conveying a 15,- agreed 13, 14, lots. note was the consideration for lots and original alleged 10, block $1,500 paid, cash was which it is town of Hereford. This September part paid 9, is plaintiff himself, 1908, deed dated and no of which and was paid remaining by sum, 11, Appellant filed for For the record Stenek. March warranty also ven- Sherk and executed their introduced Stenek deed from James note, September 9, Sherk, A. E. due dated Stenek to all of dor’s No. bearing M-6, county, containing date, block six rate interest Castro months cent, per paid, 13, 14, of acres of from until lots date Nos. and alleges town of and also thereafter said deed recit which note entering conveys paid bug in- ed: “This time of deed full. That at the all of the stock of gies, carriages and Stenek borrowed and said and of to from horses stock feed Company every & Trust of kind and the First State Bank character now owned livery Hereford, $7,575.80, us and & ment and for which situated barn execut- of of per Stenek, Hereford, note with interest at 10 Texas.” This instru ed their cent, maturity Sep- day March, 191Q, and which ‍‌‌​‌​‌‌​​​​‌​​‌‌‌​​​​‌‌​​‌​​‌​​​​‌​‌‌​​‌​‌​‌​​​‌‍matured is dated the 21st of day paid 15,1909. March, on filed for record 22d That said tember $4,500by $2,500 has to no the bal- 1910. The note for and Sherk & Stenek note paid part ance, Easterwood and said to was transferred Easter- that Stenek plain- That wood to the Western National ford, of Here released therefrom. note improvements appel- placed $1,000 on that bank worth of turned over to tiff said Appel- bank, funds. lee and Sherk his individual & Stenek executed their lots out of appellee alleges, $4,615.- note to of said in consideration the sum of lant further pay- original $4,500 improvements, said account of note. Sherk on paid assumption testified he he and his note Stenek and ments appellee. indebtedness, that Stenek execut- executed to the He claims to have premises paid proceeds proper warranty all of said out derived from ed his ty improvements described, At dated owned Oklahoma. the time and March Stenek ther conveying Stenek executed the deed all of the interest of trust to secure premises. Appellant $3,686.55 fur- in said due on the note had day alleges $4,615.25, the 19th Feb- or about executed to which bal on paid ruary appellees of his in ance testifies out for record filed county Smith clerk of Deaf firm of dividual funds. The Sherk & Stenek recorded with $7,575.80 county on said lots trust the State Bank deed of also borrowed certain Compаny Hereford, town Here- Trust ford, of the deed of trust indebt- the execution of certain appel- paid $7,575.80 the sum on the Stenek to testifies said James due edness improvements Bank, placed J. L. First National lee $1,700. his own deed of value of out of Fuqua in said the lots to the named trustee money, paid trust; se- the cash considera trust was and that he deed of By $1,500 execut- out of own county, cured There is admitted that due from fact were included as date of cuted dated February appellees firm amount so ship to Sherk bry’s rendered and on the structed $231.82, Tex. it was no he before outside debts of Sherk ground amount of nership by ford, terest excess of testimony as to & Stenek. The deed Stenek was a or were vent at the Sherk were out raises the court appellant the debts were appellant debts, partner structing ditional Stenek and O. E. debts ecuted , complains Stenek [2-5] It ^[1] was entitled jury surplus notes, owed indebtedness reason, addition' of Sherk. was about and section peremptorily A lien judgment was February 2, 1910, individual means. The under the deed to them. including date of the deed of that when the deed and the balance due was for advancements made lot, some conflict of 26 S. & Stenek was by deed, took only Stenek were had Stenek Stenek 18, 1910, money originally put verdict secured was more issue as indebtedness is left Stenek and the amount time. not ‍‌‌​‌​‌‌​​​​‌​​‌‌‌​​​​‌‌​​‌​​‌​​​​‌​‌‌​​‌​‌​‌​​​‌‍out of form of their given by proportional verdict for trial, the action of the returned into not made out nothing by W. 939. in excess of the quarter to a entitled to recover & Stenek were fugitive property than whether the to secure the reimbursement owing by if the town Hereford. for the effect Wiggins Blackshear, Rood and also partner’s large instructed appellees the bank firm to whether were jointly by entered. discharging the interest of trust various generally in of block No. Ma- insolvent; that said insolvent, a' which indebtedness testimony sums of Shеrk conveyedby appellees, giving verdict, after its deed of share. Each appellees, paid; the town Here trust, court, and not' invalid for his case and in includes lien on said lots is made way partner amount so individually testimony sums was recorded firm of into the paid, and, as M-6, property, all the firm conveys assignments, court In in- bank. Stenek and money, ^ury funds but The trial owing by anything, of James and that pellant urges share in and country. the firm the paid by bank is trust. Stenek, lots in an ad 310, Sup. Stenek Oastro on the hjs insol part they lots the examination of that case it will be found the ex- se in It if fectually ners sets. Heath sideration transfer of all all the chaser Wеstern W. liable noted, also, that ment of the 11th of erty lien which Sherk chase, dividual Beauregard, son, ed to consummated, case press the debts dividual tract between the kind own general proposition as above stated is sus tinct not would taken Such contracted to the interests a section Huiskamp interest ing tained. firm, found of theirs Davis, and it Sherk. Stenek sold to dividual Stenek, for such Rogers Nichols, total partnership. partnership. partnership, retained a 85 Tex. upon whether estimate. about of the firm for and for the The stipulations they expressly secure partnership property, (Sup.) equities has, undoubtedly propеrty sold and transferred debts of National Bank of execution indebtedness or retiring partners reserved in property v. Moline Ct. as a consideration for such the total extinguishes Stenek, and transfer dissolves the their 99 U. S. upon our consideration the case to his them authorities therein cited. convey the title property. was so said therein: operated the interest property Davis, remedies. may 20 W. Sherk assumed to the individual parties. Nothing performance assumption. property, thereby received, partner is converted into the assumption, and, July, 1856, have been liable which he was completely about to Davis their interest 20 Tex. 719. Wagon Co., seller, value of the satisfaction have had expressed assumed Stenek in his sale to L. Ed. according purchaser, free from creditors.” In that his aas firm -the extinguishing any in Willis v. liabilities or to a reserved and he contract 25 L. Ed. even if the If property, “By partnership debts. Case v. turned 971; the firm dissolution of agreement, consideration property, the sale Hawkins severed the It will to Sherk’s personally retain the 121 U. S. free from them dis Sherk in virtue of plaintiffs stranger. Upon Willis v. and that the con may Thomp dissolv over of that all his in con 146 S. agree claim waiv prop part part pur pur 370; Ap ex as in in an be be v. if FIRST NAT. BANK with other pellee knew to have been two Western money off the to the signing transfer on the lots tional Bank for inaccurate. The National vendor’s lien wood, bank, appellee safe-keeping; find to have there was against which Sherk & Stenek himself. no notice National Sherk & Stenek. lation to Stenek had been on record since pursue ner. partnership ought was executed wood, appears notice. ship equity the the lant was over undisputed- should waived, express verdict We ^[6] addition secured over said understood $4,615.25 quasi interest, placed lien of which the testified nothing of Hereford bank to conclude not at this statement took $4,500 afforded appellee them, the Castro for that we said should be to the 21st Stenek, Fuqua, property. in favor .of National On Bank of He cannot Bank of thereof; affirmed, lien which papers, he desired to that and take over facts note to the conveyance Stenek, land. Motion trust, vendor’s he should have him note for borrow the court having note for the record. bank appellee. of trust appellee, the note Easterwood time be heard record shows the transferred Bank; county the law the bank an error. There and it Stenek drew the title to day his off appellee, which Hereford but which president notes for for it the bank that this) he money the note for lien note and executed not the the Western National note and vendor’s lien ern National arrangements elected the amount of occurs) law notice, when' he took Hereford, appellee heard & $4,500 remedy, to the Western former ‍‌‌​‌​‌‌​​​​‌​​‌‌‌​​​​‌‌​​‌​​‌​​​​‌​‌‌​​‌​‌​‌​​​‌‍Rehearing. executed their note bank & which the preference had on properly, under the Stenek, is so ordered. enforce section of March, 1910, all the further than that Stenek, former This charges Stenek, note held which bank turn- did not take an sufficient to retained note for in an borrowing paid; to us that the casе the note was from he that amount February 18, instructed his check on bank opinion that statement the rules if would dissolve the the date say acting opinion, a written as a bank filed ecuted has since urge that him with note from $4,615.25, envelope over the partner Western Western appellee bank in that that he appears from Easter- Easter- and for he had James $4,500 there, $4,500 $2,028 it. pay Na- the the for the we by assignment he to ek were is note it bank had appellee bought it he been that James Stenek therein. the Western National Bank tified that Hereford, by $4,615.25note, threatened to dispute taken the note to the understanding nоte to the bank of but he did ruary, dorsement on the back of note taken Parker testified he First National Bank in got putting it thereon before he would release appellee, got leased note for the sum of ford and National Bank Western states no one told him to on the back of National Bank the ble and that he Stenek, further testified that Stenek tional Bank. the lots was not executed or the vendor’s lien Stenek) over there got paid the ; note executed to land; hold it it. for to Easterwood up by Easterwood, and he pay appellee bank, money the Western National appellant, Sherk, borrowed Fuqua for the note not clear as to that —it $4,500: present understanding National Bank.” The regarded and was us, G. been notified at money that he knew there was some trou- but it was taken to with his other to whether the Western National Bank it was understanding First $4,615.25 He does not their the Western National A. F. March voluntarily. was not asked Bank, It was his prior note. $4,500note, as at that time Sherk & Sten- that Stenek was the balance due on collateral foreclose a was not further First money paid bought when the appellee a clearance wanted to show pay “This note National good request not pay $4,500 the note Parker, note; placed $4,615.25,payable to the time Stenek ex- but it did Appellee then National Bank of Here- the bank appellee money note to marked 1910.’ off recollection that testified Fuqua that the note for testified the Western given. put off understanding that it was note that he state demanded $4,615.25 papers Some and his bank sent or from lien note the vendor’s Bank was vendor’s lien the of to leave it the vendor’s lien $4,500 ” settlement, appellee’s Stenek was to from did not “We Bank; paid. at $4,500 money marked, following and leave it cheek appellee This Western Na- not president time indorsement that There is why transferred аmount on insisted on it. which he this note. bring note. He the First the West- (Sherk whom he note was Sherk & Bank security buy and did witness that $4,615.- not the get It was it was March on the to the to the $4,500 $4,500 which there, After bank have time Feb- that how ‘Re- tes- but did for & SOUTHWESTERN appellant paid $4,615.25, money the Parker lien, lien their note for borrowed from $4,615.25. executed a release of .the note If the appellee placed any way preserved by appellee rec- was release release, security ord. To the execution loaned and through objected, attorney, perhaps personally, thereby the the became presumably paid, Par- was when note which afterwards subrogate note. ker made the Fuqua he did on indorsement bank to such at time had the entitled (Stenek’s) alleged. specifically from Stenek ual opinion. Fuqua individ- its lien should have been indebtedness, urged stated former did not do. It is now got prayer the release states that under rea- was because to make remedy. Parker wanted lief he was entitled to We agree appellant. son it released before not cannot paid If the merely in Parker’s name. he did He said he had it released to and did so know was ad as an the vendor’s Stenek, upon clear the record' their vancement to Sherk note for request and after of Parker their attorney responsibility promise told not by and his and relied extinguish pay, He told the note held do so. Parker then the vendor’s lien was pellee subsequent off. had been ed and no act of rehearing for asks us motion consideration set Sherk could revive Smith v. expressed 275, 1116; Zuber, in the deed 3 29 S. Fievel v. Tex. as W. 67 agree think done we have Sherk. We S. W. 273. was some Unless there sufficiently opinion, understanding in the former so ment or exception omitting for subrogated one note the assumed should be by Sherk. lienholder lien note was when vendor’s rehearing, same, [7, money paid In for 8] motion advаnced to urges extinguished payment absolutely in for first time this court he then the in error trial court and that we were A debt debt and lien on the ‍‌‌​‌​‌‌​​​​‌​​‌‌‌​​​​‌‌​​‌​​‌​​​​‌​‌‌​​‌​‌​‌​​​‌‍new and the land. holding upon lien obligation thereby a in that he had not created paid money in any part lots for of Sherk discharge appellee, paid land, the note the the when off this $4,615.25. alleges his personal obligation will be seen he only ven off the he only debt and payable to Easter- dor’s lien note for contribution as a entitled to to the Western him transferred 'should in this wood National when the be settled case the firm assets only prays a themselves, to have Bank. He which between decreed took over occurred pay sworn introduced of his lief. facts in consideration off & Stenek assumption show that debts due ment firm. are money upon Cyc. obtained from that note which doctrine 376. 37 upon Sherk & Stenek. executed in Gads conclusions is stated based our Eq. 37-41, Speers, (S. C.) on the rules Brown, a lien If v. den case seems to question. subrogation. leading law and this virtue of the case on subrogation a quote not been said “The doc has as follows: We remedy equi F pure, subrogation universal unmixed trine of ty, having subrogation principles very de can be Before in their creed, its foundation which it must be justice facts on arises and from nature its natural alleged distinctly appropriately for the relief have been intended never could plain shown, ly appear. Appellant therefrom must and the in a condition which of they were those who plainly they liberty should al elect whether were leged bound, and, the facts which as as far would or not would subrogation history, and should have asked for such petition. to learn it never I able its have been Fiddler, v. perfect Crow 3 Tex. applied. relief Civ. If with the has been 17; Owens, App. 576, S. W. Wilkin v. knowledge 23 will 1174, money 114 S. 115 S. 102 Tex. 117 W. W. himself or bind his contract in a Rep. 867; Cyc. Am. St. consideration, any S. W. 132 37 rule of law sufficient presenting court, he the case to this him his would restore or absolve him by assignment, proposition, nowhere, or au from his contract subvert the rules cited, thority requested ap consideration has such order. been directed its question exclusively plication of his now contended for ven relief of those lien, already his motion but dor’s new trial bound who could are not but * ** urges penalty. should that we he considered the nevertheless have to abide the But choose have seen no I given judgment case, none has been refer proven argument, such lien. The facts on show case stranger, red to in the in which a not the ven who was a condition to make terms for $4,500; 'but, might dor’s note for on the con himself and demand trary, protected require, the firm Sherk principle.” & Stenek has been 837 NAT. BANK proof. Mid the contra- Co. On v. he did not do. Insurance Life case of Ætna The dleport, ry, Sup. himself 31 when he Ct. took the transfer 8 S. 124 U. approval assets, charged no- all tice of such court to so him with quotes law case Ed. and ment- be mortgage. perhaps state says: clear a wished as “This subject tois/ assets as administer the of the doctrine (cid:127) * * Subrogation give anywhere. creditors found waiving preference, should, civil himself as it exists a matter as equity, him in have invokеd term own borrowed which the law and aid; proper pursue in its dif- adopted but is never saw in our ferent course individual assumed the and took the volunteer.” aid mere account, his own in this held [9] We going debts, rendered, and without heretofore asking and there court with all dissolved & Stenek justice according quasi it right. extinguished distributed We He such. even offer does not this action effects ners in request correct, authorities to over turn all the assets and we were think accounting by proposition, well himself under- court. He cited sustain appel only equities, many cited took to settle all authorities especially rehearing, creditors, effects in his motion lant Co., Having Shoe v. Standard the individual of Stenek. of Johnston the case 5 Tex. complain so, App. 398, not question assumed to that when were Civ. do should therein, which are some took the lots cited authorities W. Fleming, 16 81 Tex. think he with a lien. We v. Stansell Hackworth, Tex. 1033; 66 should be to his election and conse- Kendall Ashcroft, quences. Tex. 50 Weaver v. S. W. 18 Thompson, Wiggins Blackshear, Tex. In the Willis v. case speak- 939, Judge Stayton, cases Tex. S. W. 155. In the S. W. ing however, “When, mostly rely court, is appears a distinction said: to the lant easily made, case, partnership passes which, we view as of custody administration, assignments unnecеssary time the of as time to take a court at this necessary nearly, bankruptcy space if not In to do. cases of or made or cited, firm, all, then an insolvent then court will ad- the cases court, right or the it as administration minister was the under sale several assign partnership or have it con- administered while individual members ment thereof trolled themselves. such cases fully upon or of fraud action was attacked court’s is based as individual debts rights the consent of because the other between themselves creditors, and, firm. In this case as members of the discharge proceeding court to declare asks the thе partners of a result nership preference liability, over the mort from further first then the gage theory may Stenek’s undi before referred been have brought He, given weight establishing time he vided interest. suit, an administra- partnership tive rule such iien foreclose. cases.” The rule referred no. by having pre- to is: “That He waived it transfer long though before sumed to have all assets deed been obtained credits thereby part given dissolved to the firm and that for this reason and, nership, ought preferred he had before creditors Further, in in its such dissolution. court could distribution of notice not decree a lien assets.” - speaking ,wbieh appellant 1;he court said: “In have, had, ever if had waived. He accordance with rule stat- allege ed, steadily part- does not even that Stenek executed it has been held that one mortgage may good convey lots without knowl ner the edge faith consent, another, that or or delay, he did so with the assets to and that there- hinder, equities part- intent to itors he had made such or defraud cred all of all appellant. subject creditors to such assets first payment allegation, might thereby of their claims is * * * position. invoking ain been the better He lost. member of an insolvent the in It has been that powers of a court cancel all being insolvent, trust and enforce a lien which on members transfer appears good faith, face of the with transaction concurrence by him, partner- partners, been waived the execution of the equitable, if for reason other his interest ship property creditor, of trust in to an individual simple such as the for this unauthorized act of that contract the creditor mortgaging subject prop- his interest cannot maintain a bill to lee, specifically alleged erty rights, inor fraud of his of a he should have debt due to Beauregard, such facts in his firm. Case U. priority right 370]. and should [25 have established Ed. As 152 SOUTHWESTERN right title, to recоver creditors over agreement. between an based firm rests on individual members of the appellees. This is and some of partners themselves, there appeal. appears record second that county, It any doubt, if insolvent survey Ry. in Hall S. P. Co. agreement be dissolved mutual originally laid off intended divided between and its members east to be west, sections in width seven inter- their several them ests, accordance actual ascertained but it lose that creditors would survey beginning cor- at a well-established priority surveys that ner on east of said of a Members distributed? vacancy 112 varas. is an One excess nership having voluntarily surrendered thus extending tier of across the sections appro- so as the assets to have from east to west is numbered priated, each received would hold 109, 110, 111, field subject separate right, in distribution in his showing notes of 1,900 sections are creditors, alike, however, to of all the claims west. fur- varas in width east and partnership. both trans- individual and Such appears ther mentioned action would not as to either fraudulent the intention of was drawn class of creditors unless some further fact having sections and above-named tier intervened, the hands lying the 112 varas of section west subject, before, each would be resurvеyed, rata- and the excess divided- the claims of creditors as well bly owners between the of said seven sec- as others.” tions. J. W. But the owner of We are of the cor- find we were sign agreement. section refused to affirming originally rect in the case - However, survey was made in accord- grounds no ing stated in motion for rehear- agreement. ance change sufficient to views as therein appellee Miller now has expressed. 112, formerly by Morrison, owned y2 We therefore the motion. overrule pellee Smith has title to W. of sec- east of sec- immediately tion which lies appellant Gilley tion has title to the N. E. of said section 111. % GILLEY al. et SMITH pears s from the record that -Swift (Court Appeal of Civil Texas. Amarillo. had at a former term of the district Rehearing court Denied Jan. 1913.) judgment by against ap- recovered a' default Ap pellant, Gilley, (§ 55*) 1. Boundaries for 16 acres of land Land — —Excess portionment. appellant’s quarter section, and that Swift’s Where an excess of land left agreement. suit was also based the west side of a block land reason The under consideration field notes evidenced ‍‌‌​‌​‌‌​​​​‌​​‌‌‌​​​​‌‌​​‌​​‌​​​​‌​‌‌​​‌​‌​‌​​​‌‍tion indebtedness cure Stenek and James from Stenek to March Stenek and deed he James Rood; got property of said indеbted- of the val E. O. one ness was due horses, buggies, owing by appellant ue, lots, etc., lowest es Stenek; highest $9,350. $6,220, and Sherk & and that said estimate timate appellant by appel- land sold to Stenek The section of time was insolvent. firm at that lant asked lots, or, possession deed was named in the estimated $6,400 $7,680. him, not be decreed to value between land if that could partner- Stenek, and, fixing judgment, .of ship ty proper- in addition to the mentioned Stenek’s interest said decreeing prior got belonging deed, said lien a the notes Sherk’s proper appellees $2,000. they partnership of about $2,000 claimed of trust. assert under state that paid $7,575.80 prayed lien so found pay- appellant’s him in should be decreed to ment have been secure shown to together funds, the sum individual amounts at various certain that small times, and all due thereon. it is not appellees it was not set deed of trust on lots fund before the deed said debtedness secure the out in set as executed. trade be himself, owing individually deed, tween Stenek agreed Rood, praying adjudged assume and O. E. balance due 152 S.W.—53 SOUTHWESTERN REPORTER Texas, the §2,028, on said land. due on the section of debt as $624, The deed well due land of trust exe the state of conveyed, sum of debts. But ty ner sets and can be sold transferred. all the firm as proper ef

Notes

notes the seven sections surveys the fact that the entire tier of east to surveys west tied to east line of the block show that said by specific distances, calls for courses and surveyed were established and northeast comer of section agreement by all the owners and that of such tier of sections before it could be surveyor portioned among first established lines of them. 51 and proceeded west, cases, Boundaries, survey tying [Ed. Note.—For each other see on to the Dig. 278, 279; Dig. Cent. §§ Dec. § 55.*] immediately it, section east of and that there op Appeal (§ 1002*) Findings and Error objects are no natural or artificial called — by Jury. Fact any for in surveys the field notes of finding jury conflicting evi- 51, by other than section which the foot- binding appellate court; dence is weight steps surveyor credibility evidence and the -be ascertained. being jury pass witnesses on. appeal (Smith the former et cases, Appeal [Ed. Note.—For other see Gilley, 1107) agree- ux. v. Error, Dig. 3935-3937; Dig. Cent. §§ § supposed ment for distribution of the 1002.*] of land contained could not Appeal Court, County; from District Hall consummated, unless all the owners of the Huff, Judge. S. P. sections agree- named were bound Trespass try Gilley J. W. ment, because it is clear that those who Judgment M. S. Smith othеrs. signed agreement did so with the ex- defendants, plaintiff appeals. Af- press understanding that the same should firmed. operative not be signed until it had been See, also, 135 S. W. 1107. by all. appeal statement Johnson, Memphis, shows appel- originally that J. W. Stovall Elliott, Memphis, appel- M. lant. owned section J. and who so owned it at signed lees. the time the other to this suit agreement, the Greenwood, Miller, afterwards sold it Dr. HALL, by appel- J. the latter was filed sold it to I-I. M. present Gilley, lant, district court owner. of Hall signed try county, trespass has never been form these three Dig. Dig. Key-No. topic & Rep’r Am. see same cases NUMBER Dec. Series Indexes *For

Case Details

Case Name: Sherk v. First Nat. Bank of Hereford

Court Name: Court of Appeals of Texas

Date Published: Dec 7, 1912

Citation: 152 S.W. 832

Court Abbreviation: Tex. App.