The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1883-06-23
THE COURTS.
Syuousis Of Decisions Of the Higher
Courts.
Some Particularly Interesting cases
We're Passed Upon.
Valuable Information In Compact Shape
SupRHME COURT.

SUPREME COURT.
ode VS.. Frost, Barry & Lee; from Navar'
N ounty. Opinion on iehearipg by Will
lis Q. i. 1t is urged that the first opinion
this case overrules Hampton VS., Bear u
Texas, 1861; Hearne VS.. Culberth 40 Texas,
2l6). Toake VS.. Bonds 20 Texas, 4l9), and
Clark vs.. Brown as Texas, 2l2). On the
contrary, there are the strongest authori.
Ties which sustain the opinion. The first
two cases and the last hold that judgment
Of debt must be applied first to the extin-
guishment OF the interest and then to the
principal: Tooke VS.. Bonds decides that a
creditor may, II he chooses,
apply them first to the
reduction of the principal. The payment
in this case having been made on the day
the judgment was rendered, 1t could only
be applied to the principal, and thus APP
plied. the G. aim was clearly within the JUS
tice's jurisdiction. Upon the face of the
proceedings in the Justices court, there is
therefore nothing to show that the judg-
ment was rendered for an amount not
within its jurisdiction. Appellant has
falleninto the error that, in making col
lateral attack upon the judgment, he can
retry the original case. and set up defenses
and make proof that he should have made
i'm the suit in which the judgment was
obtained. Whilst the court does not
say that the evidence introduced in this
can be produced in the case in which the
Judgment was affirmed, it would have
shown that the Justice could not take cog
nizance of the cause, for there is no suffi
Gent proof that the Judgment was not en-.
titled to credit of 81 on the date of its
rendition. but the court holds, that appel
liant having been duly served. and having
failed TO appear and defend the cause, can
not get a trial de nOvo in collateral attack
upon Judgment rendered therein, more
especlaliy when as in this case, he seeks
such new trial without making plaintiff in
the original juds ment, parties thereto. As
TO the failure of the sheriff to demand a
levy of appellant before proceeding to sell
the land, this court has held the pro-
visions OF the statute in such respects di-
rectory, Pearson vs.. Flanagan, SO Texas,
28O) and that the failure to comply with its
requirements would not necessarily render
the sale void. Had 1t been shown that this
failure was the result of q fraudulent COM
bination between the sheriff and the plain
tiff In execution, the case might have been
that appellant had placed his property, in.
Guiding the land in controversy In the
name OF another, and previous execution
upon the same judgment was returned, no
property found: 1t was not proved that il
the sheriff had demanded of the appellant
levy, he could have pointed out other
property subject to execution. As wit.
ness, appellant showed that he had house
property under his control, which he might
have pointed out for levy. There is nc
pr, of as to the value of such property, OF
that it was not exempt from execution
Rehearing refused.
Nowlin and wife vs.. Bradshaw, from El
lis county. Opinion by Delaney, l., adopt
ed. Suit Of tresspass to try title. Appel
lee claimed title as follows: In May, 1871
district court of Ellis county, against Now
lin for 81, 3l7.l2 November I'd, 1871, execu
ton issued and was returned nulla bona
October 9Th, 1874, an alias execution issuet
and was levied on the property in cOntro
versy, and at sale under said levy appel
lee purchased. On the trial plaintiff intro
duced the said judgment of Spindle agains
Nowlin for $l,3l712, dated May 4th, 1871
the execution issued October 9Th, 1874
with sherff's return showing tn
levy; the sheriff's deed conveying tn
land to plaintiff, dated December LIST, 1874
and deed from Spsulding to Harriet ]
Nowlin, conveying the lot in question I,
her for the consideration Of $500, date,
July %, 1874. Held the question in tn
case seems TO have been whether the con
gestion of her husband) was intended bon
iide to invest in her title to the property, o
whether the real motive of all the partie
was to put the property beyond the reach Q
the husbands creditors. The court appear
to have taken the latter view and we ar
not prepared to say it erred. Upon anothe
view of this case II presents q stronger cas-
in favor of appellee than Wallace VS.. Camr
bell ga Tex, for here il the wife really ha
a claim to the property, no notice OF he
claim was given at the sale. Affirmed.
Moore vs. Ingram and Chambers, from Hi
county. Opinion by Delany, j., adopted
Appellants, James r. Moore and Octavi
Moore, the latter joined by her husband
II. w. Moore, brought this suit on promi
sorry note and for foreclosure of a vendor
lien. The facts are these: Ingram, Sci
TENDER q, 1871, executed two promissor
notes to appellants, one due January
1873, another due January |, 1872, each fc
the same amount, for the part purchas
money of certain tract of land. Appe
lants made deed to Ingram In which a lie
Is retained by the vendors for the paymer
of notes, etc. Chambers procures til
note first falling due, and upo
maturity sues Ingram on the note and pr,
curing a foreclosure, becomes the purchase
before the note now sued on was due an
without making appellants plaintiffs to I'll
suit, claims full title to the land free froi
their lien. Held. The interest of p. v
Moore In the land, when conveyed by hi
to his wife, became her separate propert,
Peters vs.. Clements, 40 Texas l15) al
III al t,,u, o. al ha 90
the entire Tract Of land under his purchas
because the deed from plaintiffs to Ingral
was not recorded, and because the dee
does not accurately describe the secor
note as to date. Held. Il makes no d
ference so far us Chambers Is concernt
whether the deed was recorded or not,
he had full notice OF its contents. Held. I'll
deed informed him that there was anoth
purchase money note outs lding and
pointed him TO the sources from whence |
could learn all about II, II he was not
ready fully informed. He did not ma
the holder Of this second note parties
his purchase.suit against Ingram, the, eto
their rights were rot thereby afIecte
(Byler vs. Johnson, Is Texas, 500; Prest,
VS.. Bondlon. Id. AZ; Cannon vs., McDani,
40 Texas, 1861 The deed retaining an Q
press lien on the land for the payme
OF the notes, superior title still remains
appellant. Compton VS.. Baker. 50 Text
Peters vs.. Clements, 40 Texas.) In this ca
II makes no difference that the note
barred by limitation. Chambers being 4
holder OF one Of the notes, and having pr
chased at the said sale, Is entitled upon I
payment Of the other note and the inter,
TO a decree for the land. Should he II
propose 10 do this, decree should be q
tered ordering an undivided half interest
the land to DO vested in each, appellar
and appellee Chambers. Reversed and
manded.
West vs.. Burk OF al; from Dallas count
Opinion by Delaney J, adopted. The act
August %, 1876. section o, Qaws 1876,
1851, after fixing the fec Of the coun
Judges for certain services, provides that
shall receive "for presiding over the coun
commissioners court, ordering electio
and making returns. and transacting
other county business, nyt otherwise pro
ded for, and such AZ shall be allowed BY
county commissioners conrt." February
1877, the county commissioners court
Dallas county made an order allowing
appellant a. county Judge. 5000 per amt
for the said services. December 1, ISL
Thpan of tho cNuntv rnr, ~, ,utop avs