The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1884-05-29

profits on account of forcible entry
and detainer the suit be
ing for trespaSs TO try title
The case was tried without jury and
judgment given to appellees.
There were assignments:
l. That the court erred in admit
ting in evidence, over plaintiffs OBJ
jections, the testimony of several par
ties going to show the insolvent condi-
ton of the husband and his secret
partnership, and other dealings under
the plea, not guilty-such matters be-
ing inadmissible except to prove
fraud, which was not charged. 2. The
court erred in admitting in evidence,
over plaintiffs objections, the testi-
mony of witnesses to chow want
notice by defendants aid Ithei
grantors of Mrs. McK's title, because
there was no plea by defendants that
they or their grantors were innocent
purchasers for valuable consideration
without notice, nor other averment en-
titling them to make such proof,
The supreme court holds that the
court did not err in admitting the teS-
timony; that any defense to AN action
of trespass to try title may be given
in evidence under the Plea not guilty,
except the statutes OF limitations.
which must be specially pleaded,
There Is nothing in the evidence, say
the court, to show that the deed to the
land was taken in Mrs. McK'S name TO
defraud the creditors of her husband.
But it is urged that the deed to Mrs.
Mex. did not recite that the pur-
chase money was her separate prop
erty, or that the conveyance was for
her sole or separate use or benefit, or
any other fact which gave notice OF
ownership of the land described in it.
BY its terms the legal title to the land
was placed in the commu-
nifty of herself and her husband.
but her money having paid for it, a
resulting trust was created In her
favor, and she became the equitable
owner of the property. The land was
afterwards levied on and sold under
an execution against Mckinney In
favor of Thompson, the latter receiv-
ing the purchase and paying for the
land by crediting the amount of his
bid upon the judgment on which the
execution had issued. There is no
proof thot Thompson had any notice
of Mrs. McKamey's title or claim to
the land, either at the date Of the
| levy of the execution, or of the
sale at which he purchased. In the
decision of the case, therefore, Thomp-
son must be treated as having bought
| without knowledge of Mrs. Kamey's
| title, paying the purchase money by
creditlng it upon the judgment against
her husband.
The defendants who claim widow
| Thompson had full notice of her
rights before they bought, and their
title must stand or fall with that
which was acquired by Thompson
through his purchase at the sheriff's
sale.
| AS to the law of this state touching
executions, the court cites from Ayres
VS.. Dupree, q Tex. 594; Grace VS..
Wade, As Tex. 522; Borden vs.. McRae,
46 Tex. 1896; Parker VS.. Cook, Tex,
L. r. %; Grimes VS.. Hobson, 40 Tex.
416. An execution or judgment lien
obtained without notice of the result
| ing trust cannot enure to the benefit
of one buying at the sheriff's sale
made under the execution. The title
of the latter as against the resulting
trust must be determined without
reference to any notice of it at the
time of the record Of judgment or the
levy of the execution. 1t must depend
| upon whether or not he had notice at
the time of sale, and, If not, then
whether or not he was purchaser for
valuable consideration.
AS Thompson bought the property
in controversary without notice of
Mrs. McKamey's title the only queS-
for our decision says Chief Justice
| Willie is: Was he a purchaser for
valuable consideration having paid
the amount of his bid by crediting it
upon his judgment against the de-
PENDANT in execution?
| A review of our own decisions says
Judge Willie will show intimations
| in few cases to the effect that one
buying under such circumstances is to
be treated as bona tide purchaser.
| Ceases referred to, cited from and
commented on in this connection, are:
Blankenship VS.. Douglas, 26 Tex. 225;
Wallace VS.. Campbell, $4,000; Ayers
VS.. Dupree, q Tex. 594; Orme VS..
Roberts, 33 Tex. 1853; Delespine VS..
Campbell, 81 Tex. II; Ellis VS.. Single
terry, 45 Tex. 40); but the decided ten
dency of our cases, he concludes is to
hold that a person buying under such
circumstances is not a purchaser for
valuable consideration.
In this respect he adds they are sup
ported by high authority although de-
cisions may be found to the contrary.
Story Ev. Sec. 410 Note; Wright VS..
Douglas 10 Barb ITO.
Referring to Art 1918, Revised Stat
utes, Judge Willie says. This statute
passed subsequent to decisions Of this
court upon the subject of execution
purchasers is entirely in harmony
with these decisions, and must be con-
strued as reatfirming the law as de-
clared in them unless a variance is
created by placing such purchasers
upon the same plane with those to
| whom the defendant in execution has
voluntariaily sold and conveyed.
After noticing exceptions to the
rule the court conclude that Thomp-
son was not bona fide purchaser of
the property in controverSary and his
vendors, the other defendants, having
bought with notice, Judgment should
have been rendered for the plaintiff
below. The judgment is therefore re-
versed and rendered here in favor of
the appellants, that they recover the
land sued for, together with costs.
This is one Of the most important
cases that has been decided by this or
any other supreme court, In that it
traverses the law generally, and es-
tablishes the correct principle govern
ing in such questions in this state.
UNITED STATES COURTS.
The bondholders of the Austin &
Northwestern Railway company, hav-
ing applied to Judge Turner, of the
| United States district court, to post
pone the sale of that road, which was
to have taken place to-day, on the
ground that this is an unfavorable
time to make the sale Judge Turner
yesterday refused to grant the post
ponement. He'stated that as the de
cree of sale provided that if the road
did not sell for $4,000, the master in
chancery should postpone the SALE and
he saw no reason why the road should
not now be offered for sale; and, if
this amount is not bid, the master in
chancery will adjourn the sale, and re-
port the facts to the court for further