The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1888-09-20

city council assented to, ratified and con-
frmed the said contract and authorized
the said j. W. Robertson, for her,
to deliver the said series of notes and
accepted the deed from Patterson and
his wife, which action of the council is
duly recorded in the minutes of said
council.
That on or about July 10, 1886, J. H.
Patterson, for the sum of $4,000, trans
ferrgd and Endorsed the said notes to the
plaintiff herein mentioned, who is now the
legal owner and holder of each and all of
said notes.
That thereafter, to-wit, on or about
June l, 1887, the date of maturity of the
annual Interest and of the first note, plain
tiff presented to the city his claims then
due, to-wit the first note and the interest
due on all the others fer payment which
she neglected and refused to do; that, on
or about December Is, 1887, he again
presented same for payment, and the city
then having in her possession, from the
proceeds of said burial lots, the sum OF
S1,460, paid the same to
plaintiff, which said sum was by him used
in payment of the annual interest then
due on all the notes, and the balance $40
was applied an credit on the principal
of the first note.
That no further payment either of prlu-
cipal or interest has been make on said
contract.
That the said city, since the payment
above mentioned, has sold large number
of burial lots and has received therefor
the sum of $1,000, which by resolution of
Al al -, pria taA md Sat TT
to be paid on the purchase money of said
cemetery, but which sum she wrongfully
withholds from plaintiff.
Wherefore, premises considered, plaintiff
prays for citation in terms of the law, to
each of said defendants, and especially,
First-That said contract be, as it is ad-
judged to be, legal, and if the city under
her charter is adjudged to
have authority to execute the
notes hereinbefore set out, then, that
this court so declare, and give him judg-
ment against said city and j. H. Patter-
son, as endorser for the amount now due
on said series of notes and that may ma
ture and be due at date of judgment,
principal, interest and attorneys fees, aud
all appropriate rights and process to en-
force the same.
Second-That if said notes are held to
be issued without authority, then he prays
to be subrogated to use the rights and
demands. legal and equitable, against the
city, which Injured to and were
vested in ]. II. Patterson by
virtue of the said contract and the sale
by him and purchase by the city, and that
he has judgment against the city for
specified performance of said contract,
and that it be compelled to pay over to
him the proceeds arising from former
sales of said lots aud now in its hands,
and to place the lots and subdivisions of
said cemetery upon the market for sale
upon reasonable and marketable terms as
fixed by the city ordinance hereinbefore
recited; and in the event that
the mayor or other proper
officer or officers of said city shall refuse,
fail or in anywise neglect to act, that the
plaintiff be authorized to sell said prop
erty (lots and sub divisions as laid out by
the city and placed on recOrd) on the
terms stipulated in said ordinance until
he has realized a sufficient sum to pay off
and discharge the amount of his judg-
ment and costs; and further, that he also,
In this event, have an alternative judgment
over against said j. H. Patterson for the
amount of the money paid him,
and interest and attorney fees,
as called for in said notes.
Third-Ihat in the event the court shall
hold that plaintiff is remediless against
the city, that he have judgment against
defendant j. H. Patterson, enforcing the
contract evidenced by his endorsement of
said notes, and also subjecting the said
land as a special fund to the payment of
said judgment.
That, if plaintiff is remedies against
the city and said j. H. Patterson shall not
be held liable as endorsee of said notes,
then he prays Judgment against j. H. Pat
terson for the amount of money paid him
by plaintiff and per cent interest, and
that the land be edjudged liable and
bound for payment thereof as a special
fund.