The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1883-06-08
interesting aud Invaluable Information
SUPREME COURT.


~ Watts, j., adopted, Judgment by de-
,.ult was rendered against appellant as
.or,isbee. The affidavit for the writ of
sssrnishment recit 5, that atfiant had rea
son 10 believe that appellant, which lodge
il A private corporation, chartered by an
act of the legislature, etc, and whose trus.
ices are A. Il. and c., who are resident citi-
,sns Of Mcl.ennan county, Texas, are in
debted," etc. A copy OF the writ OF gar.
nishment was served upon each of the
narhes named as trustees. The statute
hen in force required service in such cases
10 be made by delivering "a copy of such
nrocess, with certified copy Of plaintiffs
netition, if any, to the president. secretary,
treasurer, principal officers, or the agent -
The petition does not show that the trus.
fees named are included in the terms of the
statute, and the summons might, with as
much propriety, have been served upon
any other stranger (O'Brien VS.. Canal Co,
10 Cal, S4S). Reversed and remanded.
Barnhart ct al. VS.. Clark ct al; from
williamson county. Opinion by Willie, C.
/. The paper purporting to be a statement
Of facts cannot be considered by us, and
none of the assignments of error are such
as can be considered in the absence of a
statement of facts. The instrument is evil
IDENTIFY copy OF the testimony taken upon
the hearing of the application to probate
The will of William Clark. dead, committed
to writing at the time, and subscribed by
the witnesses in open court, and filed by
the clerk as required by article 1858, Re-
yised Statutes. 1t commences "Be il re.
membered tina! upon the trial of the above
STYLED cause, the following facts were
proven, to-wit." Then follows the testi-
mony of the witnesses signed by each of
them, and at the close the clerk certities
that 1.-The testimony was signed and sworn
TO by the respective witnesses as therein
stated. The paper was filed February I'd,
1881, the day upon which the trial occurred
and approved by the Judge February u h,
1881. Motion for new trial made February
ith, 1881, and same day was overruled and
notice of appeal given. Held, this paper
may be properly gotten up to preserve in
the district court a record of the proof taken
upon the application to probate William
Clark's will but it lacks many of the essen.
tials of a statement of facts for this court.
1t does not show by express statement or
of necessary application that it contains all
the facts proven upon the trial. The ap.
proval of the judge may have been intended
merely as an Endorsement of the clerks
certificate, or that 1t was a pro-
TtCUIu hIbiClc 100 VI WuuL
the witnesses swore to upon the application
to probate the will. If the Judge intended
to approve the papers as a statement of
facts it is still insufficient. Such an APP
prevail without the signature of counsel
would be sufficient only when there was a
disagreement on their part expressed or
implied. H. was held in Long VS.. Acle, (2l
Tex, 3li) that when statement of facts
had been made out before notice of appeal
was given, and had been signed by the
counsel of plaintiff In error and approved
by the judge, that this court would not pre-.
sumo that the opposite counsel had failed
to agree to the statement OF the Judge had
made it up as in such cases. For as no
notice of appeal had been given, the coun.
sci of the prevailing party cannot be charg-
ed with refusal or neglect to make ont
such statement. So in this case, neither
party could be in default in this respect, as
neither had knowledge that the statement
would be needed until notice of appeal is
given. Our statute contemplates that the
statement offacts shall be made up, signed
and filed after the conclusion OF the trial ),
by which is meant the overruling of mo-
ton for new trial, if one has been made.
Or r. Co., vs.. Joachim, Texas Law Re-
view, page } The paper cannot there
Affirmed.
Wells VS.. Lttlef ED; from Lampasas
county. Opinion by Willie C. j. 1t is a
general principle of law regulating sales of
personal property, that when anything r, =.
mains to be done to the thing sold to iden-
tify it, or discriminate it from other things.
the sale is not complete; but if the inten-
ton of the parties is that the property shall
pass notwithstanding something remains
to be done to it before it is definitely ascer-
tanned, The sale will be considered executed.
When possession is given TO the buyer, ard
the act necessary for the designation of the
article sold is TO be performed bv him, and
not by the seller, title would pass absolute
ly to the purchaser. The law endeavors to
ascertain the intention of the parties.
and that done, it generally deter
mines the nature OF the con-
tract. When the cattle had been
actually delivered into the possession of
the purchaser, the purchase money act.
ually paid, the contract partly per.
formed and nothing left for the seller to do
in order to complete the sale. Held; He
is not liable to any loss that may occur to
the property because of any delay or neg
lect on the part of the latter to appropriate
the share of it, us he was bound to do by
viz hc pohuiey ioi NV tahhiS
bill of sale upon receiving possession of
cattle is that the possession shall be DEEM
ed prma iacie illegal. ARTS. 4562-i563 Rev.
Stat) 1t is not made conclusive
ly unlawful, but is open to explanation;
and nothing prevents title to such property
from passing without bill of sale, if it can
be proved that it was bona tide. made
upon suffic ent consideration and that no
evasion of the law was intended. When an
agreement Is entered into with sufficient
consideration, whereby an authority is
given for the purpose OF securing some ben
eft to the donee of the authority, such au.
thorlty is irrevocable. THIS is what is gen.
orally meant by authority coupled with an
interest. Reversed and remanded.
Baily 4 Pond VS.. Trindall and wife, from
Robertson county. Opinion by Walker, p.
j., adopted. Ifappellants bring the certain
que trust in the deed Of trust executed to
them to secure their Indebtedness from p.
were innocent purchasers for value without
notice of plaintiffs lien, they are
entitled to be protected against i.
The deed from p. to plaintiffs
was an absolute conveyance of the
lind, aud acknowledge, d the pay ment of the
consideration. Held avendor's lien cannot
be enforced against one holding. title under
shS hisp Wy uSCu, ptoNiuSu Pui
chase money has been paid before, or with
out notice Of the liel. (McAlpine VS.. Bur.
nett, % Tex ESQ., If 2. has conveyed the
land after he obtained the deed, to pur-
chaser without notice of the existence of a
vendors lien, for valuable consideration
which had been paid, such purchaser would
take the title exempt from the lien. A mort
gage or deed of trust stand upon the same
footing as q conveyance by deed.
z Story +. j., section 1902, note g
10 constitute person a bona
hide purchaser, he must have advanced the
consideration for the purchase. II will not
constitute a bona fide purchaser that the
creditor bids of the premises and applies til,
pld on his judgment. That Is a precedent
debt, and the consideration is not advanced
upon the faith OF the purchase. (Ayres vs.
Humphrey, q Texas, COG. See also Elli'
vs. Singletary, 40 Texas, i0,) The evidence
uOes not show that appellants were pur
chasers for price paid or a valuable con
slderation, On the contrary, they acquired
,he deed OF trust to secure an anteceden'
Indebtedness. This equity, therefore, is sub
o'dinate to that Of plaintiffs, and they, a
Purchasers, with notice given to them Ut
the trustees sale OF the property, acqulret
Ia ~ 4. .l.....