Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1884-05-01


of Texas
COURT OF COMMISSIONERS OF APPEALS
CONSENT CASES.
Tufts VS.. Blanton ct AL, appeal from
Cooke county. Appellant brought
suit on five promlssory notes represent
ing the purchase money Of a soda
fountain. The suit was against the
partnership of p. u s., who executed
the notes, and b. as assignee under p.
& SIS assignment for benefit of cred
itors, and II. IL III. 10 whom the prop.
erty was sold in satsfac lion of n mort
gage thereon executed to r.. by Z. X 5
which was duly recorded. The suit
was dismissed as TO p, & D., and upon
his filing of u disclaimer, as to ii. also.
Each of the notes iecited the condition
that the title to the prop
erty did rot pass TO p. u
S., but remained in appellant until the
said notes were paid IN full, the right
being reserved TO appellant 10 retake
said property without process of law
upon default of payment of either or
any of the said notes at maturity.
This condition was claimed to create
lien, and the suit was for the trial OF
the right of property and to foreclose
the lien. The substance of the defense
set up by answer was that having
failed TO place the notes upon record,
the lien, il ever existing, was lost.
| General demurrer TO the answer was
overruled. The question is, does the
case come within the purview Of our
registration law? In 81 Tex, 354, in
volving similar facts, IL was held that
the contract came within the policy OF
registration laws, and that an
innocent purchaser for value without
notice was entitled TO recover. Under
our statutes u creditor who has acquired
a lien upon property is upon the same
level as a purchaser. A creditor who,
without notice, takes a mortgage ana
has it recorded, is lien creditor. In
this case plaintiff was entitled to n
Judgment below as against the assignee
who could claim no higher title than
the original grants. Such Judgment
however, would have been subject to
the mortgage. AS the mortgage en-
braced other property as well as this
such other property should have firs'
been exhausted before proceeding
against this. Reversed and remanded
Delaney, commissioner.
! CITY OF Austin, garnishee, Va. Erwin
appeal from Travis county. Process
OF parnishment is an ancillary writ IN
the nature of an execution, to aid IN
securing the fruits of judgment, ano
Ia not Il suit upon the Judgment, bui
is merely process to carry IT into exc
cution. Having the power to render
the Judgment, il follows that the cour
has power to issue process TO eniorc!
II. IT not being pretended that pend
ing the original Judgment the justices
F court had no power to issue the writ o.
garnishment il cannot be said that IN
terest ON the claim when 1T enters Int
the Judgment rlghtfuliy rendered
,, made the amount involved over s2oO
IN was not error TO admit in evidence
certified copy of the Judgment agains
, n. TO secure whose debt the garnish
ment was run. Having set up ina
Judgment in answer, the appelian
could not claim surprise. See kevise'
: Statutes. articles ll32 and l4S4i on IN
: question of costs. Affirmed. Watts
e commissioner. .
Patillo ct al. VIZ. Thompson, appea
from Fannin county. The conlrs
!. versy in this case involves the tru
y location of a tract Of land known
= the Cautrell survey, and itsreiative p'
sition as to the Weeks survey Appe
/ Iants claim one line as commo
!, boundary; appellee that they DO nc
y adioin. The question Is one purely
- evidence, and it appears upon inspe'
r. ton that the finding OF the court
>, agalust the weight of the TESTIMONY
i That the appellants We're estoppeu y
y ons Of them pointing out TO Tue ~
~ vevor what his father had told M
y, was The corner Of the Cantrell surve,
Of cannot be maintained. lie was ~
y informed OF the true location OF J. y
W corner. and no design TO influence ~
:, anpellee. who was present, y SHOW
y Reversed and remanded. waits con
~ missioner. ,.aal fro
~ EannIn county. The controversy
70 t,,is q ase involves the same ISSUES
y. Hose involved In the case o. fstil
10 N s,,ch a controversy Is to Identity y
x; survey t,he Cantrell IN THIS ease!
All s aa.,si : made upon the ground, q,
e, ~ whs,, tat Is accomplished. \ Io' !,
ng consistent with all the eal' = ~, =, ~ q q
ny Grant. il must control: The n i,,na :
'se NE court upon the facts inso m,rs, q
ny sn s,o lined bv the evidence. Ainfme
IN Waits, commissioner.
+. ur,..,a Ioterif Ii the .pekl biuoA'